GULSHAN RAI NAGPAL Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This writ petition is directed against the Order of the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok dated 16-08-2010 in S.T. Case No. 2 of 2005, by which an application under Section 300 of the Code of Criminal Procedure, 1973, (in short "Code of Criminal Procedure") read with Article 20(2) of the Constitution of India filed by the Petitioner was dismissed.

(2.) In the writ petition, it has been stated that in the Court of the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok, a case under Sections 468/471/420/34 of the Indian Penal Code (in short "IPC") had been registered against the Petitioner and one Dawa Karma Lepcha and a joint trial conducted against them. It is stated that during the trial, the accused No. 2, Dawa Karma Lepcha, was not present and the Petitioner alone had appeared before the trial Court but, subsequently even the Petitioner could not appear under circumstances said to be compelling against him. That later, accused No. 2, Dawa Karma Lepcha, did appear and the trial was completed allegedly against the said Dawa Karma Lepcha alone. When the trial was completed and the judgment pronounced on 10-04-2003 by which the co-accused Dawa Karma Lepcha was convicted and sentenced under Sections 420/468/471/34 IPC, the trial Court erroneously recorded conviction against the Petitioner also which as per the Petitioner was an erroneous exercise of jurisdiction and amounted to acting in flagrant disregard of the laws and the rules of procedure and violation of the principles of natural justice resulting in failure of justice. It is averred that the Petitioner could not have been convicted as the entire trial was conducted only in respect of the co-accused Dawa Karma Lepcha and not against him.

(3.) It is further stated that the judgment dated 10-04-2003 passed by the learned Chief Judicial Magistrate, East & North Sikkim at Gangtok, convicting the co-accused Dawa Karma Lepcha and the sentence passed against him had been set aside by the learned Sessions Judge, East and North Sikkim at Gangtok in Criminal Appeal No. 16 of 2003, filed by the said accused, Dawa Karma Lepcha. Under such circumstances, even assuming that the trial of Criminal Case No. 147 of 1998 before the learned Chief Judicial Magistrate is considered to be a joint trial and the judgment culminating therefrom a combined judgment against both the Petitioner and the co-accused Dawa Karma Lepcha, the Petitioner would also be entitled to the benefit of the decision of the learned Appellate Court and would be deemed to have been acquitted of the charges as in the case of the co-accused Dawa Karma Lepcha. It has further alleged in the petition that the conclusion of the trial Court that the Petitioner had committed the offences is bereft of any reasons and, therefore, the judgment was not a judgment in the eyes of law. It is stated that when the Petitioner appeared before the trial Court and noticed the erroneous judgment dated 10-04-2003 convicting him of offences and, of the fact that the said judgment had been set aside in appeal, the Petitioner filed an application under Section 300 Code of Criminal Procedure on the ground that his trial in the case would amount to a second trial. However, the learned Chief Judicial Magistrate vide its Order dated 16-08-2010 dismissed the petition on an erroneous finding that the impugned judgment dated 10-04-2003 was a combined judgment of both the co-accused and the Petitioner and that the charges against them were quite distinct. The Petitioner further states that the Order dated 16-08-2010 dismissing the application under Section 300 Code of Criminal Procedure and fixing the date for hearing on sentence was an erroneous exercise of jurisdiction in flagrant disregard of the laws and the rules of procedure and violative of principle of natural justice resulting in failure of justice and accordingly, prayed for the following reliefs: