RAJ KUMAR RAI Vs. STATE

JUDGEMENT

(1.) THE accused-appellant has been convicted on his own plea of guilty to a charge under Section 25 (1) of the Arms Act, 1959, which has been extended to Sikkim by the President by a notification under the provisions of Oreder (n) of Article 371f of the Constitution of India on 16th May, 1975, and enforced on 1st Aug. , 1976. The charge was that the accused on or about 19th Feb. . 1978, had in his possession a revolver and one live cartridge without any licence therefor and the accused has been sentenced to suffer rigorous imprisonment for one year.

(2.) IF the Amu Act, 1959, ii validly operative in Sikkim as a result of its extension to and enforcement in Sikkim under the provisions of Article 371f (n) of the Constitution, then the conviction must be maintained and the appeal must be dismissed as there is and can be no other challenge to the conviction in this case.

(3.) UNDER Section 412 of Cr. P. C. 1898, which is still now the law relating to Criminal Procedure in Sikkim, if an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal except as to die extent or legality of the sentence except where the conviction is made by a Magistrate of the Second or the Third Class. But there is no doubt that even though the facts admitted amount to an offence under the provisions of a law, but the law itself is not in force or operation, the so called admission cannot amount to an admission of the commission of an offence or a plea of guilty. The expression "offence" means, as will appear from Section 8 (38) of the General Clauses Act, 1897, an act or omission made punishable by any law in force; but if the relevant law is not at all in force, then the facts admitted, even if they amount to an offence under the provisions of the said law, would not amount to an admission of the commission of an offence or a plea of guilty in any area where the law is not in force. Therefore, if the Arms Act, 1959, is not validly operative in Sikkim, the admission of guilt in this case shall not amount to any admission or a plea of guilt within the meaning of Section 412 of the Cr. P. C. 1898, to bar an appeal challenging the legality of the conviction. I cannot accept the contention that even in such a case the appeal against the legality of the conviction is barred and not maintainable under Section 412, Cr. P. C- and that the accused is to seek his remedy in a revisional or a writ proceeding or a proceeding under Article 227 of the Constitution. If the law whereunder the accused has been convicted is itself not in force or operation then the conviction will amount to a violation of Article 20 of the Constitution whereunder "no person shall be convicted of any offence except for violation of a law in force" and I believe that even a Court sitting in appeal from a conviction on a plea of guilty cannot remain a silent spectator to such an infraction of the Constitution. If the Arms Act, 1959, is not in force, then the appeal in my view is maintainable even against the legality of the conviction and I need not invoke any othen jurisdiction vested in this Court in disposing of this case.