KALPANA DEY Vs. SUKUMAR DEY

JUDGEMENT

(1.) The principal question which falls for consideration in this criminal revision (wrongly registered as a criminal petition) is whether an appeal against an order of interim maintenance passed by the learned Magistrate of First Class, Shillong under Sec. 125 of the Code of Criminal Procedure ("CrPC" for short) lies under the provisions of Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills, 1937. Before Proceeding further, I may straightaway reproduce hereunder the relevant portion of the order passed by me on 5-12-2008 in the connected Criminal Revision Petition No. 31(SH) of 2008:

(2.) Notwithstanding the clear cut direction issued by this Court, the following orders are passed by the learned Addl. District Magistrate after re-hearing the parties:

(3.) At the outset, I am constrained to observe that there is no concept of "partial admission" or "total admission" of an appeal by an appellate court. The appeal is to be either admitted or not admitted as warranted by the facts and circumstances of the case. Coming now to the meat of the matter, namely, the maintainability of the appeal in question, I am also constrained to observe that the learned Addl. District Magistrate has evidently misconceived and misunderstood the jurisdiction vested in him by law. If it is a case under the provisions of CrPC, the powers of appeal are dealt with by Chapter XXIX therein. Sec. 372 says that no appeal shall lie unless otherwise provided. Sec. 373 deals with appeal from orders requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour while Sec. 374 speaks of appeal from convictions. Sec. 375 provides that there will be no appeal in certain cases if the accused pleads guilty whereas Sec. 376 bars appeal in petty cases. Appeal by the State Government against sentence is provided for in Sec. 377 while Sec. 378 refers to appeal against acquittal. Then there is Sec. 379 which is about appeal against conviction by the High Court in certain cases. There is also a special right of appeal in certain cases envisaged by Sec. 380 when more persons than one are convicted in one trial and an appealable judgment or order has been passed in respect of any of such persons in which case all or any of the convicted persons at such trial shall have the right of appeal. To recapitulate, Sec. 372 categorically bars an appeal from any judgment or order of a Criminal Court except as provided for by this Code or by any law for the time being in force. Orders of maintenance or interim maintenance passed under Sec. 125 do not find a place in any of the aforesaid provisions for appeal. This then takes me to the provisions of the Rules for the Administration of Justice and Police in Khasi and Jaintia Hills, 1937 ("the Rules") dealing with criminal proceedings. Chapter III of the Rules under the heading of "Criminal Justice" provides for procedures in the administration of criminal justice. Rule 16 says that criminal justice shall be ordinarily administered by the Deputy Commissioner, his Assistants, and by the sardars, dolois, and other chief village authorities of the different communities. Rule 17 speaks of the power of Deputy Commissioner to pass sentence in original cases and the Revisional powers of the High Court or Deputy Commissioner in respect thereof. This rule is undoubtedly confined to the passing of sentences in original criminal cases and does not speak of proceedings such as maintenance or preventive proceedings. Rule 17-A is about reference of sentence of death to the High Court for confirmation. Under Rule 17-B, a duty is cast upon the Deputy Commissioner to inform the accused of his right to prefer appeal against the death sentence. Rule 17-C deals with the procedure for confirmation of the death sentence by the High Court. I may now refer to Rule 21 which deals with appeal to the Deputy Commissioner, which is in the following terms: