STATE OF SIKKIM Vs. PALDEN BHUTIA

JUDGEMENT

(1.) THIS Reference under Article 228 of the Constitution of India and Section 432 of the Cr. P. C. made by the learned Sessions Judge of Sikkim at Gangtok by his order dated 28th of Nov. , 1979, brings to the forefront the question of the constitutional validity of theedure Act. 1976 (hereinafter called the "sikkim Act") in the light of the provisions of Article 371-F (k) of the Constitution of India. The answer to this question would finally settle the procedure to be followed by the Courts in Sikkim in respect of the trials of criminal cases pending therein. The circumstances leading to this Reference may first briefly be stated.

(2.) THE controversy involved has a close link with the judicial history of Sikkim during the last three decades. Though from the historical point of view the period does not relate to distant past yet the procedural atmosphere is surrounded with such mystery as if excavation of prehistoric culture is needed to unravel it. So far as the Penal law is concerned, the position as it prevailed before July, 1953 is somewhat hazy but by and large the provisions of the Indian Penal Code were broadly guiding the destinies of the criminals but after July, 1953 a Notification bearing No. 160/os dated 10th of July, 1953 was promulgated and the I. P. C. 1860 was in terms made available to the Courts for basing their decisions regarding the criminality of the persons brought before them. The procedural aspect, however, still remained obscure as no legislative mandate is traceable till August, 1963 when a Notification bearing No. 73/h dated the 30th Aug. , 1963 makes reference to the Code of Criminal Procedure, 1890 and carries the implication that sometime before the issuance of this Notification, the Code of Criminal Procedure, 1898 had been bought into force to settle the procedural guidelines for the trial of criminal cases. There being no indication in this Notification of the date on which the Cr. P. C. 1898 was adopted in Sikkim or the date for which this Code was brought into force, the Notification, instead of offering any assistance in resolving the controversy, kept the uncertainty alive till Sikkim became part of India. To explain this a brief reference to the Cr. P. C. 1898 is necessary. This Code has been the subject-matter of numerous amendments till its repeal in 1974 but in the present strife the amendment brought about by the Amendment Act 26 of 1955 are mainly involved. By this Amendment Act, Section 251 was amended and new Section 152-A was introduced in the Cr. P. C. 1898. The departure in the procedure considerably curtailed the opportunity for cross-examination which was earlier available to the accused in a warrant case instituted on police report and the acceleration of the trial appears to be the motivating force behind this procedural innovation.

(3.) TO have a clear, though a bird's eye view, of the problem, a brief reference to Article 371-F (k) of the Constitution is indicated. By this provision, the laws which were in force in Sikkim on the appointed day (26th Apr. , 1975) were preserved and continued till their repeal or amendment by appropriate authority. If the Cr. P. C. 1898 was adopted in 1953, at the time the Indian Penal Code was extended to Sikkim, as is commonly the impression, and the subsequent amendments were not extended, the procedure in the trial of warrant cases instituted on police report would be as was provided in Chap. XXI before its amendment by Act 26 of 1955 and this would be the law in force in Sikkim on the appointed day. In that case, Section 251-A would not be attracted and the trial would be conducted without the procedural charge introduced by this provision. The Notification of 1963 though highly probabilises the existence of an earlier Notification whereby the Cr. P. C. 1898 may have been adopted in Sikkim but as it failed to indicate the date of the pronouncement by the competent authority it offers no assistance in resolving the procedural problem. In this situation three alternatives can be visualised, i. e. , (a) the procedure for the criminal trials may have been controlled by the Code as it stood before the 1955 Amendment, or (b) as it stood after the 1955 Amendment, or (c) that the Code in terms may not have been adopted and the Courts may have continlied to follow the basic procedure provided in the Code of 1898. As to which of these possibilities represented the precise state of affairs, certainty alludes the final conclusion but it may be added that in case the third alternative was to provide the keynote, uniformity in procedure must have been the casualty. In any case, whatever may have been the position, because of the absence of a clear legislative mandate, this state of uncertainty continued till the appointed day and was somewhat heightened thereafter. Realising this unhappily situation, the State Legislature stepped in and enacted the Sikkim Criminal Procedure Act, 1976 and brought it into force with immediate effect, i. e. from 29th Mar. , 1976. Though this enactment ought to have acted as a magic-wand to drive away the clouds of ambiguity but unfortunately the Courts in Sikkim failed to comprehend the full impact of this legislative measure, with the result that haziness still permeated the procedural atmosphere. So much so that even after three years of the enforcement of the Sikkim Criminal Procedure Act, 1976. the learned Sessions Judge felt compelled to make a Reference to this Court under Section 432 of the Cr. P. C. However in fairness to the learned Sessions Judge it may be mentioned that this confusion mainly stems from the persistent impression (for which there was probably some factual basis) that along with the Notification dated 10th of July 1953 whereby the I. P, C. was adopted as the law in Sikkim, another Notification extending the Cr. P. C. 1898 was also issued. This impression is obvious from the Office Order of the Acting Chief Justice dated 25th of July, 1975 which indicated that the Code of 1898 as it stood before Amendment of 1955 was being followed in Sikkim and this position was reiterated in Passang Lama v. State of Sikkim 1975 Cr LJ 1350.