The State Of Meghalaya vs Melvin Sohlangpiaw

SPECIAL LEAVE TO APPEAL (CRL.) NO.1218 OF 2018

THE STATE OF MEGHALAYA ….PETITIONER

VERSUS

MELVIN SOHLANGPIAW ….RESPONDENT

J UD G M E NT

MOHAN M. SHANTANAGOUDAR, J.

1. The Respondent herein, a member of the Khasi

Scheduled Tribe, was being tried for the offences punishable

under Sections 302 and 201 of the Indian Penal Code (‘IPC’)

before the Sessions Judge, Nongstoin, West Khasi Hills District. Signature Not Verified Digitally signed by ASHWANI KUMAR Date: 2020.02.15

Briefly, the case set up by the prosecution is that a dead body 10:30:53 IST Reason:

was found lying on the Nondein river bank on 26.03.2017,

1 pursuant to which the Officer in Charge of Police Station,

Nongstoin (‘Complainant’) was informed and an FIR was

registered by him. Upon investigation, the identity of the

deceased person was known, who was also found to be a member

of the Khasi Scheduled Tribe. With the use of a SIM card

recovered from her body, the last calls made using her number

were traced to the Respondent herein (accused). Consequently,

the accused was arrested and he voluntarily lead the police to the

spot where he had buried the dead body. On 31.08.2017, a

chargesheet was filed against him under Sections 302 and 201,

IPC. On 08.11.2017, the case was committed for trial to the

Court of the Sessions Judge, Nongstoin, West Khasi Hills District

and the accused was summoned to appear before it.

However, on the basis that the parties to the instant case

are both tribals and thus, the case is exclusively triable by the

District Council Court, the accused preferred a petition for

transfer of the said case to the Court of Judge, Khasi Hills

Autonomous District Council, Shillong. Vide the impugned

judgment dated 05.12.2017, the High Court of Meghalaya,

Shillong allowed this petition. The instant SLP has been filed

against this order of the High Court.

2 2. At the very outset, it is important to note that the area

where the alleged offence is said to have occurred, West Khasi

Hills District, is a notified autonomous district included in the

table appended to paragraph 20 of the 6 th Schedule to the

Constitution of India (‘the Constitution’), which deals with the

administration of tribal areas in the States of Assam, Meghalaya,

Mizoram, and Tripura. Specifically, the aspect of judicial

dispensation in such areas is dealt with under paragraphs 4 and

5 of the 6th Schedule to the Constitution as follows:

4. Administration of justice in autonomous districts and autonomous regions.—(1) The Regional Council for an autonomous region in respect of areas within such region and the District Council for an autonomous district in respect of areas within the district other than those which are under the authority of the Regional Councils, if any, within the district may constitute village councils or courts for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub­ paragraph (1) of paragraph 5 of this Schedule apply, to the exclusion of any court in the State, and may appoint suitable persons to be members of such village councils or presiding officers of such courts, and may also appoint such officers as may be necessary for the administration of the laws made under paragraph 3 of this Schedule… …(4) A Regional Council or District Council, as the case may be, may with the previous approval of the Governor make rules regulating—

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(a) the constitution of village councils and courts and the powers to be exercised by them under this paragraph;

(b) the procedure to be followed by village councils or courts in the trial of suits and cases under sub­ paragraph (1) of this paragraph;

(c) the procedure to be followed by the Regional or District Council or any court constituted by such Council in appeals and other proceedings under sub­ paragraph (2) of this paragraph;

(d) the enforcement of decisions and orders of such councils and courts;

(e) all other ancillary matters for the carrying out of the provisions of sub­paragraphs (1) and (2) of this paragraph.

xxx

5. Conferment of powers under the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898 , on the Regional and District Councils and on certain courts and officers for the trial of certain suits, cases and offences.—(1) The Governor may, for the trial of suits or cases arising out of any law in force in any autonomous district or region being a law specified in that behalf by the Governor, or for the trial of offences punishable with death, transportation for life, or imprisonment for a term of not less than five years under the Indian Penal Code or under any other law for the time being applicable to such district or region, confer on the District Council or the Regional Council having authority over such district or region or on courts constituted by such District Council or on any officer appointed in that behalf by the Governor, such powers under the Code of Civil Procedure, 1908, or, as the

4 case may be, the Code of Criminal Procedure, 1898, as he deems appropriate, and thereupon the said Council, court or officer shall try the suits, cases or offences in exercise of the powers so conferred.

(emphasis supplied)

3. Relying on these provisions, learned Counsel for the

Petitioner urged that under paragraph 4 of the 6 th Schedule to

the Constitution, all of the parties to a suit or case must

necessarily belong to Scheduled Tribes within such areas, for the

District Council Court to have exclusive jurisdiction over such

suits or cases. Given that a criminal case is always prosecuted by

the State, he submitted that the instant case against the

Respondent cannot be said to be a dispute between two tribals,

as the deceased is not and cannot be a party to such a case. He

also urged that the Complainant, i.e. the Officer in Charge at the

Police Station, can also not be considered a party to the case, as

he was acting in his official capacity and thus forms part of the

State machinery.

4. Per contra, learned Counsel for the Respondent­accused

emphasized that a combined reading of paragraphs 4 and 5 of

the 6th Schedule to the Constitution indicates a special

dispensation for the adjudication of disputes in tribal areas, that

5 must be given effect. Where the Governor exercises his power

under paragraph 5(1) and entrusts the Courts set up by a

District Council with the trial of certain kinds of offences, such

Courts must have exclusive jurisdiction. In this regard, learned

Counsel drew our attention to the notification dated 07.02.2017,

vide which the Governor of Meghalaya conferred the judge of the

Additional District Council Court, Shillong, with the powers for

the trial of offences punishable with death, transportation for life,

or imprisonment for a term of not less than five years under the

IPC or under any other law applicable in the Khasi Hills

Autonomous District Council for the time being. In light of this,

she submitted that the jurisdiction of the case against the

Respondent rests exclusively with the District Council Court.

Reliance was also placed on a Full Bench decision of the

Meghalaya High Court in Longsan Khongngain v. State of

Meghalaya, (2012) 1 Gauhati Law Reports 812 in this regard.

5. Upon considering the material on record and the

arguments advanced by the parties, the central issue that arises

for our consideration is whether the criminal case against the

Respondent is exclusively triable by the District Council Court,

6 having regard to the scheme and language of paragraphs 4 and 5

of the 6th Schedule to the Constitution.

6. Before we delve into the provisions of the 6 th Schedule, it

is to be noted that the Sessions Court before which the

Respondent was facing trial is a court established and

functioning under the provisions of the Code of Criminal

Procedure, 1973 (‘Cr.P.C.’). Notably, sub­section (2) of Section 1

of the Cr.P.C. provides that the Code has no application to tribal

areas. At the same time, it gives the State Government the power

to extend the operation of the Cr.P.C. to tribal areas as follows:

“Section 1. Short title, extent and commencement.

(1) This Act may be called the Code of Criminal Procedure, 1973.

(2) It extends to the whole of India Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply­­

(a) to the State of Nagaland,

(b) to the tribal areas, but the concerned State Government may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification. Explanation.­­ In this section, "tribal areas" means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth

7 Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.

As seen above, the expression “tribal areas” occurring in

Section 1 of the Cr.P.C. refers to the areas indicated in the Fifth

and Sixth Schedule of the Constitution. In the absence of a

notification by the State Government extending the Cr.P.C. to

such areas, except the three chapters referred above, the

provisions of the Cr.P.C. are not applicable to the tribal areas in

the State of Meghalaya, including the Khasi Hills District.

Here, it would be useful to note that that Chapter VIII of the

Cr.P.C. deals with security for keeping peace and for good

behaviour, Chapter X deals with maintenance of public order and

tranquility, and Chapter XI deals with preventive action of the

Police. Evidently, none of these subjects falling under Chapter

VIII, X and XI are relevant for the purpose of deciding this matter.

Trial before the Court of Sessions falls under Chapter XVIII of the

Cr.P.C, which does not apply to the tribal areas in question.

7. Under the 6th Schedule to the Constitution, Paragraphs 4

and 5 deal with the administration of justice in Autonomous

Districts and Autonomous Regions referred to in paragraph 2 of

the 6th Schedule. As mentioned supra, paragraph 4(1) accords the

District Council or Regional Council, as the case may be, with the

8 power to constitute Courts to exclusively try suits and cases

where all parties thereto belong to Scheduled Tribes within such

areas. This, however, does not apply to those suits and cases that

are covered by paragraph 5(1) of the 6 th Schedule, wherein the

Governor may confer on the District or Regional Council, or the

courts set up by a District Council, or on any officer appointed by

the Governor in that behalf, such powers under the Cr.P.C. or the

Code of Civil Procedure (‘C.P.C.’) as the Governor deems

appropriate. Further, paragraph 4(4) stipulates that Courts set

up by the District Council are to function in accordance with the

procedure evolved by the rules made by the District Council or

Regional Council, as the case may be.

8. In the instant case, in exercise of powers under

paragraph 4(4) of the 6th Schedule to the Constitution, the United

Khasi­Jaintia Hills Autonomous District (Administration of

Justice) Rules, 1953 were adopted. Rule 9 hereunder provides for

the constitution of one District Council Court for the Khasi Hills

Autonomous District and for the appointment of judges thereto.

In exercise of such powers under Rule 9 and paragraph

5(1) of the 6th Schedule, a notification was published on

07.02.2017, vide which the Governor of Meghalaya appointed an

9 Additional Judge to the District Council Court, Shillong and

conferred her with powers for the trial of offences punishable

with death, transportation for life or imprisonment for a term of

not less than five years under the IPC or any other law applicable

in the Khasi Hills Autonomous District Council.

9. In light of such specific conferral of powers on the District

Council Court, Shillong, the issue to be examined is whether the

jurisdiction to try the case against the Respondent rests solely

with the District Council Court.

9.1 As mentioned supra, paragraph 4 of the 6 th Schedule

contemplates the “trial of suits and cases between the parties all

of whom belong to Scheduled Tribes” to the exclusion of any other

Court in the State. Though the expression “suits and cases” has

not been defined in Article 366 of the Constitution, the Cr.P.C., or

the C.P.C., in common legal parlance developed over the years,

the expression ‘suit’ is used to connote legal proceedings of a

purely civil nature, while the term ‘case’ is used to connote either

a civil suit or a criminal proceeding.

9.2 In view of this, when we look to the argument raised by

the Petitioner that the term ‘case’ as used in paragraph 4 of the

6th Schedule precludes criminal cases, merely because the State

is the de jure complainant in all such cases, it appears that their

10 interpretation suggests that paragraph 4 of the 6 th Schedule does

not comprehend trial of criminal cases by the District Council

Court at all. This, however, is not supported by the scheme of the

6th Schedule, specifically when a conjoint reading of paragraphs 4

and 5 is undertaken. As mentioned supra, paragraph 4 itself

refers to suits and cases to which provisions of paragraph 5(1)

apply. Thus, to examine the content of “suits and cases” under

paragraph 4, it is first necessary to look to the content of

paragraph 5(1).

9.3 Under paragraph 5(1), the Governor is invested with the

power to confer the District or Regional Council, or the courts set

up by a District Council, or on any officer appointed by the

Governor in that behalf, such powers under the Cr.P.C. or the

C.P.C. as he deems appropriate, for the trial of certain suits,

cases, and offences. The conferral of powers under the Cr.P.C. in

certain instances, as has been done by the notification dated

07.02.2017 here, makes it amply clear that the District Council

Court has jurisdiction to entertain criminal cases,

notwithstanding the fact that the State is the de jure

Complainant in such cases and cannot be considered as a tribal

11 party. In fact, it is reflective of an intention to ascribe a broad

meaning to the term ‘case’ under paragraph 4 of the 6 th Schedule. 9.4 Such a reading of the term ‘cases’ is also substantiated

by the fact that paragraph 5 only empowers the Governor to

make the Cr.P.C. applicable to those cases where the punishment

for the offence is not less than five years under the IPC. By

necessary implication then, the Governor is not authorized to

invest any of the bodies mentioned in paragraph 5(1) with the

powers under Cr.P.C. for offences where the punishment is less

than five years. Reading paragraph 5 in conjunction with

paragraph 4 inevitably leads to the conclusion that all such

criminal cases are triable by the Courts constituted under

paragraph 4 of the 6th Schedule, irrespective of the fact that de

jure Complainant is the State, as long as both the accused and

the victim of the offence belong to the same Scheduled Tribe. 9.5 Thus, in our considered opinion, the term “case” does

not preclude criminal cases merely because the State is a party

to such cases. Upon a close reading of paragraphs 4 and 5 to the

6th Schedule, it becomes clear that the reference to “suits and

cases between the parties all of whom belong to Scheduled Tribes”

was in fact to the affected party (victim/Complainant) and the

accused party.

12 9.6 In the instant case, it is an admitted position that the

victim and the Respondent­accused both belong to the Khasi

Scheduled Tribe. Thus, given that there is a specific notification

dated 07.02.2017 that confers the District Council Court with the

powers under Cr.P.C. to try certain criminal offences, we find

that such conferral should be given effect. In fact, upon a

combined reading of paragraphs 4 and 5 of the 6th Schedule,

such District Council Court has the exclusive jurisdiction to

entertain such a case.

10. In view of the foregoing, we do not find any grounds to

interfere with the judgment and order dated 05.12.2017 passed

by the High Court of Meghalaya inasmuch as the High Court was

justified in transferring the criminal case against the

Respondent­accused from the Court of Sessions Judge,

Nongstoin, West Khasi Hills District to the Court of Judge, Khasi

Hills Autonomous District Council, Shillong.

As mentioned supra, on 08.11.2017, the case against the

accused was committed for trial to the Court of the Sessions

Judge, Nongstoin, West Khasi Hills District and he was

summoned to appear before it. In view of the same, we now direct

the transferee Court, i.e. the District Council Court to issue fresh

13 summons to the accused, if he has not already entered

appearance, and to proceed with the trial after framing of charges

in accordance with law. Furthermore, given that the incident in

question occurred in March, 2017, the District Council Court is

directed to complete the trial and decide the matter on merits as

early as possible, but not later than one year from the date of this

order. With such observations, the instant Special Leave Petition

is disposed of.

…..…………................................J. (MOHAN M. SHANTANAGOUDAR)

.……………………………...............J. (R. SUBHASH REDDY)

New Delhi;

February 11, 2020

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