Research › Search › Judgment

Gauhati High Court · body

2021 DIGILAW 13 (GAU)

Neelam Pope v. State of Arunachal Pradesh

2021-01-08

PARTHIVJYOTI SAIKIA

body2021
ORDER : Parthivjyoti Saikia, J. 1. Heard the learned Senior Counsel, Mr. M. Pertin, appearing for the petitioner. Also heard Mr. G. Tado, the learned Additional Public Prosecutor for the State of Arunachal Pradesh and Mr. T.T. Tara, the learned counsel for the private respondent. 2. The petitioner, Shri Neelam Pope, has filed this petition under Section 482 of the Cr.P.C. praying for quashing the criminal proceeding of G.R. Case No. 14/2009, arising out of Itanagar P.S. Case No. 132/2009, presently pending before the Court of Chief Judicial Magistrate, Capital Complex, Yupia. 3. What will happen to an erroneous judicial order unless it is set aside or correct by a superior Court? This is the crux of the present petition. Before the passing of the judgment of this Court in Registrar General, Gauhati High Court Vs. Union of India & Ors. reported in 2013 (4) GLT 1109, there was no separation of judiciary in the State of Arunachal Pradesh. The Judicial functions were carried out by the Executive under the provisions of the Assam Frontier (Administration of Justice) Regulation, 1945 (hereinafter referred to as "Regulation of 1945"). 4. The present petitioner allegedly chopped off all the left hand fingers of the respondent, Shri Taro Tagia Police registered the case under Section 326 of the Indian Penal Code. The present petitioner filed an application before the Executive Authority acting as Judicial Magistrate First Class, Itanagar, for passing a judicial order for constituting a village meeting for compromising the matter. Thereafter, on 04.12.2009, the Extra Assistant Commissioner, functioning as a Judicial Magistrate First Class, allowed the compromise between the petitioner and the respondent, Shri Taro Tagia. According to the compromise, a sum of Rs. 10 Lakhs was given by the petitioner to Shri Taro Tagia The matter ended there. 5. After 9 (nine) years of the said compromise, albeit after separation of judiciary, the Chief Judicial Magistrate, Capital Complex, Yupia, sent a summon to the petitioner asking him to appear before his Court to face the trial for the offence. 6. The learned Senior Counsel, Mr. M. Pertin, has submitted that the earlier order dated 04.12.2009 was a judicial order and the compromise was allowed by that order. Mr. Pertin, the learned Senior Counsel, further submitted that no one challenged the validity of the said order and, therefore, that order still holds the field. 7. Mr. 6. The learned Senior Counsel, Mr. M. Pertin, has submitted that the earlier order dated 04.12.2009 was a judicial order and the compromise was allowed by that order. Mr. Pertin, the learned Senior Counsel, further submitted that no one challenged the validity of the said order and, therefore, that order still holds the field. 7. Mr. T.T. Tara, the learned counsel appearing for the private respondent, has supported the contention of Mr. Pertin, the learned Senior Counsel, and further submitted that he is the victim of the incident and he has received compensation and, therefore, he has no grievance against the petitioner. 8. The learned Additional Public Prosecutor, Mr. G. Tado, has objected to the submissions made by Mr. Pertin, the learned Senior Counsel, and Mr. Tara, the learned counsel. Mr. Tado, the learned Additional Public Prosecutor, has pointed out that Section 19 of the Regulation of 1945 empowers village authorities to try minor offence like simple hurt, theft, criminal trespass, assault etc. Mr. Tado, the learned Additional Public Prosecutor, has further pointed out that the village authority does not have any authority to allow a compromise in a case under Section 326 of the Indian Penal Code. 9. Mr. Tara, the learned counsel, on the other hand, has submitted that once a criminal proceeding ends in a compromise, the matter ends there and further prosecution on the same subject will amount to double jeopardy barred under the Constitution of India. 10. I have given my anxious consideration to the submissions made by the learned counsels for the parties. 11. The executive was discharging judicial functions under the Regulation of 1945. Judiciary was not separated at that time. Therefore, the judicial orders passed by the executive authorities had the same force as the orders passed by judicial authority in any part of the country. A judicial order passed in this country holds the field until it is set aside by superior Court. A judicial order may be correct or erroneous but until and unless it is interfered by a superior Court, it is a valid order. Here also, the Extra Assistant Commissioner, while functioning as a Judicial Magistrate First Class, allowed the compromise in a case under Section 326 of the Indian Penal Code. This offence is not compound-able according to the Indian Penal Code. But somehow, by mandate of different provisions of Regulation of 1945, the matter stood compromised. Here also, the Extra Assistant Commissioner, while functioning as a Judicial Magistrate First Class, allowed the compromise in a case under Section 326 of the Indian Penal Code. This offence is not compound-able according to the Indian Penal Code. But somehow, by mandate of different provisions of Regulation of 1945, the matter stood compromised. Therefore, again subjecting the petitioner to a fresh trial would amount to double jeopardy. Therefore, I have decided to agree with Mr. Pertin, the learned Senior Counsel, and Mr. Tara, the learned counsel. The order passed by the Extra Assistant Commissioner on 04.12.2009, is still in force. 12. This Court in Registrar General, Gauhati High Court (supra), in paragraph 34, has held as under: "34. We make it clear that this order will not affect validity of any orders already passed without following the provisions of C.P.C. or Cr.P.C. on an understanding that C.P.C. and Cr.P.C. were not applicable to the State of Nagaland." 13. Therefore, the trial before the Court of Chief Judicial Magistrate in the year 2019 would amount to double jeopardy. For this reason only, the criminal petition is allowed. The criminal proceeding of G.R. Case No. 14/2009, arising out of Itanagar P.S. Case No. 132/2009, pending before the Court of Chief Judicial Magistrate, Capital Complex, Yupia, is quashed. 14. The criminal petition stands disposed of accordingly.