U SAUL DKHAR Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) THIS Criminal Reference arises out of a letter received from the Sessions Judge, Shillong, Meghalaya wherein the learned Judge apologetically pointed out that at the hearing of Criminal Misc. Case No. 67 of 1978 U Saul Dkhar v. State of Meghalaya on 30 -3 -79 by the Full Bench of this Court (since reported in 1979 Cri LJ 1418) : (AIR 1979 NOC 144) the amendment made to Section 326 of the Cr. P.C., 1973 by Act 45 of 1978 was not brought to the notice of the Court and accordingly the Court held that "in a Sessions trial for offence of murder in the tribal areas of Meghalaya, the Deputy Commissioner and/or Additional D.C. cannot act on the evidence recorded by their predecessors." The learned Sessions Judge indirectly pointed out that the ratio decidendi of the Full Bench decision would cause great hardship and injury to the litigants, as the officers are continuously transferred within a short span of time and in most of the cases they are transferred before completion of recording of the evidence in Sessions triable cases and hence "de novo trial" would cause grave injustice to the litigants. The learned Sessions Judge has merely pointed out "the change in law" and asked the Court for a decision as to whether in view of the change in law introduced in Section 326 the officers in charge, of administration of justice in the Tribal areas should follow the ratio of the decision or should be governed by "the changed law".

(2.) IN U. Saul Dkhar (supra) the petitioner was being tried for an offence under Section 302 I.P.C. and the trial was held by the Additional Deputy Commissioner, East Khasi Hills, Shillong, exercising the powers of the Sessions Judge. The charge sheet was submitted on 29 -1 -71; evidence was recorded intermittently by five Additional Deputy Commissioners. Ultimately at the argument stage the matter came up before Shri Bazeley, Additional Deputy Commissioner who found that the evidence had been recorded by a number of successive presiding officers and as such it was not proper for the Court to appreciate the evidence and accordingly ordered the case to be heard 'de novo'. The order was challenged by the accused before this Court in an application under Section 439 of Criminal Procedure Code 1898, hereinafter called 'the old Code', read with R.17 of "the Rules for Administration of Justice and Police in K and J Hills District, 1937", as amended. It may be stated at this stage that criminal justice is dispensed in "the Tribal Areas" of Meghalaya under the said Rules as well as other similar set of Rules. The procedure for hearing of cases by the High Court, the Deputy Commissioners or the Additional Deputy Commissioner etc. is "in the spirit of the Code of Criminal Procedure."

(3.) THE matter ultimately came up before the Full Bench. The majority held that the said case was governed by the provisions of Section 350 of "the old Code" and the Additional Deputy commissioner was duty bound to follow the spirit of the same. It was held that the Deputy Commissioners or the Additional Deputy Commissioners who try the Sessions cases could not be equated to a Magistrate as they were Sessions Judges while they try such Sessions cases; therefore, Deputy Commissioners, or Additional Deputy Commissioners hearing such cases where bound by the spirit of Section 350 and could not act on the evidence recorded by his predecessor. They were bound to try the cases 'de novo'. The decision was rendered on the interpretation of Section 350 of the old Code' and on the authorities of Ajit Deka v. State of Assam, 1973 Assam LR 31. AIR 1962 SC 690 : (1962 (1) Cri LJ 688) and Government 'Criminal Appeal No. 10 of 1972 State of Meghalaya v. Whitley Sangma disposed by a Division Bench of this Court on 3.2.1977 : (1977 Cri LJ NOC 122). In U. Saul Dkhar (1979 Cri LJ 1418) (Gau) (supra) the Full Bench undoubtedly made certain observations that the provision of Section 350 of 'the old code' was in 'pari materia' with Section 326 of the Criminal Procedure Code, 1973, hereinafter referred to as 'the new Code.' The statement of law is undoubtedly correct as Section 326 of the new Code read as under, except the bracketed portions : - "326. Conviction or commitment or evidence partly recorded by one Magistrate and partly by another. - (1) Whenever any (Judge or) Magistrate, after having heard and recorded whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another (Judge or) Magistrate who has and who exercises such Jurisdiction, the [Judge or] Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself : Provided that if the succeeding [Judge or] Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may resummon any such witness, and after such further examination, cross -examination and re -examination, if any, as he may permit, the witness shall be discharged. (2) When a case is transferred under the provisions of this Code [from the Judge to another Judge or] from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of Sub -Section (1). (3) Nothing in this section applied to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325."