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2009 DIGILAW 577 (GAU)

Lalropuia v. State of Mizoram

2009-08-18

H.BARUAH

body2009
JUDGMENT H. Baruah, J. 1. Heard Mr. C. Lalramzauva, learned Amicus Curiae, for the appellant as well as Mrs. Helen Dawngliani learned APP for the respondent. 2. In challenge is the judgment and order of conviction dated 26.8.2008 passed by Additional District Magistrate (J), Kolasib District, Kolasib in Criminal Trial No. 37 of 2008 whereby and where under the appellant was convicted and sentenced to under go three years SI and to pay fine of Rs. 5,000/- in default SI for five months under Section 380, IPC. 3. Kolasib P.S. Case No. 19 of 2008 was returned in final form by laying a charge-sheet against the present appellant under Section 454/380, IPC. The said case was taken over by the Additional District Magistrate (J) on 26.8.2008 on account of leave of the trial Magistrate. Before taking over the case on 29.7.2008 provision of Section 207, Cr PC was complied with and during that period the appellant was in judicial custody. On 26.8.2008 when the accused appellant was produced before the Additional District Magistrate (J), Kolasib he was convicted under Section 380, IPC alone though initially he pleaded not guilty basing on his statement (oral) sentenced him to undergo three years SI and to pay fine of Rs. 5,000/- in default SI for five months. A direction was given to return the seized articles to the rightful owner. The accused appellant in view of the judgment and order so passed, by this instant appeal has challenged the legality and correctness of the judgment. Mr. C. Lalramzauva, learned Amicus Curiae at the very out set of his argument submits that the Additional District Magistrate (J) committed illegality by not following the provisions of Chapter XIX of the Code of Criminal Procedure, 1973 before awarding the punishment as stated hereinbefore. An accused, overriding provision as incorporated in Chapter XIX in a warrant case cannot be convicted in an offence that too under Section 380, IPC. Further it is argued by Mr. C. Lalramzauva that the learned Additional District Magistrate (J) ought to have proceeded the trial of the case against the accused appellant on his plea of not guilty under the charges leveled against him but conviction without recording statement of the witnesses on his such plea is illegal and erroneous. Further it is argued by Mr. C. Lalramzauva that the learned Additional District Magistrate (J) ought to have proceeded the trial of the case against the accused appellant on his plea of not guilty under the charges leveled against him but conviction without recording statement of the witnesses on his such plea is illegal and erroneous. Further it is argued by him that Additional District Magistrate (J), Kolasib District, usurped his jurisdiction in entertaining the criminal trial and, therefore, the punishment so awarded is vitiated since on 26.8.2008 (date of judgment and order) no Court of Additional District Magistrate (J) was in existence in view of the Notification No. A. 12011/32/06-LJE dated 2nd June, 2008. By this notification in Kolasib District, the Government of Mizoram in consultation with the Gauhati High Court established a Court of Chief Judicial Magistrate and 3 (three) Courts of Judicial Magistrate, 1st Class. Establishment of such Courts in Kolasib District is shown in Schedule-I and Schedule-II of the notification dated 2nd June, 2008. Thus, this notification makes it abundantly clear that on 26.8.2008, the date on which the judgment and order was passed, the Court of Additional District Magistrate (J) was not in existence. The learned Additional District Magistrate according to Mr. C. Lalramzauva, learned Amicus Curiae usurped his jurisdiction in dealing with the Criminal Trial No. 37 of 2008. 4. The notification on the basis of which Mr. C. Lalramzauva has made his submission is placed before this Court. Perusal of which it is noticed that this notification was made on 2nd June, 2008 establishing a Court of Chief Judicial Magistrate and three Judicial Magistrate, 1st Class in the Kolasib District in addition to some other districts. The Additional District Magistrate (J), Kolasib, therefore, could not have any jurisdiction in view of the notification dated 2nd June, 2008 to try any criminal case of the district. This jurisdiction is/was all along with the Court of Chief Judicial Magistrate and three other Judicial Magistrate, 1st Class in the Kolasib District. The impugned order dated 26.8.2008 is seemed to have been passed in violation of the notification dated 2nd June, 2008. The conviction and sentence so awarded, by the judgment and order dated 26.8.2008, therefore, cannot sustain on this score alone. 5. Chapter XIX of the Code of Criminal Procedure, 1973 deals with trial of warrant cases by Magistrate of the cases instituted on police report. The conviction and sentence so awarded, by the judgment and order dated 26.8.2008, therefore, cannot sustain on this score alone. 5. Chapter XIX of the Code of Criminal Procedure, 1973 deals with trial of warrant cases by Magistrate of the cases instituted on police report. The instant case cropped up on filing of an FIR by Capt. S. Vanlalvena, Commanding Officer, Diakkawn Corps. The Salvation Army wherein it was alleged that an amount of Rs. 16,220/- (Rupees sixteen thousands two hundred twenty) only had been removed by some unknown person while he was away from home along with his wife by breaking upon the glass of window. Kolasib PS. Case No. 19 of 2008 was accordingly registered under Section 454/380, IPC and a charge-sheet was laid down against this present appellant. Nowhere from the impugned order it is found that neither of the provision of Section 240, nor the provision of Section 241 of the Cr PC was followed by the trial Magistrate before recording conviction and awarding sentence to the accused-appellant. In a warrant case instituted on a police report when the accused appears or brought before the Magistrate, the Court is to provide connected documents under Section 207, Cr PC and thereafter after hearing the prosecution and the defence, the Court is to proceed accordingly either under Section 239 or Sections 240, 241, 242 and 243, CPC. Neither of the provisions under Section 240 nor 241, Cr PC was followed by the Additional District Magistrate (J). Such conviction without following the mandatory provision incorporated in Cr PC cannot sustain in law and the impugned order, therefore warrants interference from this Court. 6. In view the defects appearing in the judgment and order dated 26.8.2008, I am of the considered view that this judgment and order should be interfered with. It is accordingly set aside and quashed. The matter is remanded back for trial de novo. After release from jail, within 20 days from today, appellant shall surrender before the Court of Chief Judicial Magistrate, Kolasib and shall obtain bail therefrom. On receipt of the LCR, the CJM may try the case himself/herself or make over the same to any other judicial Magistrate competent to try the offence(s). 7. Criminal appeal stands disposed of. For rendering valuable assistance to this Court by Mr. On receipt of the LCR, the CJM may try the case himself/herself or make over the same to any other judicial Magistrate competent to try the offence(s). 7. Criminal appeal stands disposed of. For rendering valuable assistance to this Court by Mr. C. Lalramzauva, learned Amicus Curiae for the appellant, the State is directed to pay fee of Rs. 3,500/- to him.