Gauhati High Court
Union Of India (Uoi) And Ors. vs Hari Ram on 11 September, 2002
Equivalent citations: 2003CRILJ4302, (2003)2GLR523
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT A.H. Saikia, J.
1. The Assistant Commandant/Judicial Magistrate 1st Class of 87 Bn. Central Reserve Force Police (hereinafter referred to as 'the CRPF') by this order dated 17.2.1988 in Case No. 1/88 convicted the respondent under Sections 10(m) and 10(n) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as 'the Act') and sentenced him under Section 10(m) till rising of the Court and under Section 10(n) to undergo Simple Imprisonment for 90 days.
2. Being aggrieved by the said conviction, the respondent preferred an appeal under Section 374 of the Code of Criminal Procedure (Cr.PC) before the learned Addl. District Magistrate (J) Aizawl District, Aizawl being Criminal Appeal No. 19/95 who after hearing the learned counsel for the appellant and recording the absence of present appellant/Union of India (Respondent in the said appeal) despite notice, by his impugned order dated 25.10.1995 set aside and quashed the conviction so awarded by the Asstt. Commandant/Judicial Magistrate, 1st Class holding that the Asstt. Commandant/Judicial Magistrate, 1st Class, not bring a . Magistrate according to provisions of Rule 36(B) of Central Reserve Police Force Rules, 1955 (hereinafter referred to as 'the Rules'), had no power to try charges under Sub-clause (m) and (n) of Section 10 of the Act for which the punishment awarded by the said authority against the respondent was held to be illegal.
3. I have heard Mr. P. N. Choudhury, learned Addl. CGSC appearing on behalf of the appellant and also heard Mr. M.M. Ali, learned counsel appearing on behalf of the respondent.
4. The crucial issue involved in this present criminal appeal is whether the Asstt. Commandant exercising power of Judicial Magistrate, 1st Class has been vested with the power of Magistrate under Section 16(2) of the Act to try the offences charged under Sub-clause (m) and (n) of Section 10 of the Act against the respondent.
5. Assailing the impugned judgment, Mr. P. N. Choudhury, learned Addl. CGSC has vehemently argued that the finding of the Appellate Court is ex-facie perverse because the learned Addl. District Magistrate committed a grave error in coming to the conclusive finding to the effect that the learned Asstt. Commandant/Judicial Magistrate 1st Class has not been vested with the power of the Magistrate to try the offences against the respondent on the basis of Rule 36(B) of the Rules and as such, the impugned judgment is liable to be quashed. According to Mr. Choudhury the Appellate Court had also no jurisdiction to entertain the appeal so preferred by the respondent before him since the matter relates to the Para-Military Force, i.e., Central deserved Police being governed by a special enactment in the nature of the Act.
6. Defending the impugned judgment Mr. M. M. Ali, learned counsel appearing on behalf of the respondent has contended that the Appellate Court had the jurisdiction to hear and dispose of the appeal preferred against the conviction passed by the learned Asstt. Commandant/Judicial Magistrate, 1st Class who is not a Magistrate in terms of Rule 36(B) of the Rules. His further contention is that the respondent was not afforded any opportunity to defend his case by a pleader of his choice as per provisions of Section 303 of the CrPC. It is contended that according to Rule 36 of the Rules all trials in relation to any one of the offences mentioned in Sections 9 and 10 of the Act is required to be held in accordance with the procedure laid down in CrPC and as such, the conviction imposed by the Asstt. Commandant/ Judicial Magistrate 1st Class cannot be sustained for non compliance of Section 303 CrPC.
7. For better appreciation of the contentions made on behalf of the parties, it would be expedient and necessary to refer to the relevant provisions of law involved in this present case.
8. Sub-section (m) and (n) of Section 10 read as follows ;
"10. Less heinous offences. - Every member of the Force who ..........
(m) absents himself without leave, or without sufficient cause overstays leave granted to him, or
(n) is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline, or shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to three months' pay or with both".
9. Section 16(2) may be referred as follows :
"16. Powers and duties conferrable and imposable on members of the Force. - (1) ................
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (now II of 1974), the Central Government may invest the Commandant or an Assistant Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by a member of the Force and punishable under this Act, or any offence committed by a member of the force against the person or property of another member :
Provided that:
(i) When the offender is on leave or absent from duty, or
(ii) When the offence is not connected with the offender's duties as a member of the Force, or
(iii) When it is a pretty offence, even if connected with the offender's duties as a member of the Force, The offence may, if the prescribed authority within the limit of whose jurisdiction the offences has been committed, so directs, be inquired into or tried by an ordinary Criminal Court having jurisdiction in the matter."
10. Rule 36 and 36(B) may be extracted as follows :
"36, Judicial Trials - (a) All trials in relation to any one of the offences specified to any one of the offences specified in Section 9 and 10 shall be held in accordance with the procedure laid down in the Code of Criminal Procedure. 1898(1973)......
(b) All persons sentenced to imprisonment under the Act shall be confined in the nearest jail.
Provided that if the sentence of imprisonment is for one month or less, "or where the Commandant is satisfied that due to the difficulty of transport and escort of the person sentenced to imprisonment to the nearest jail, it is so desirable, such persons shall be confined in the Quarter Guard of the Force."
"36.(B). Definition. - For the purpose of this chapter "Magistrate" means a Magistrate other than the Commandant or an Assistant Commandant on whom the powers of a Magistrate have been conferred under subsection (2) of Section 16."
11. On perusal of the provisions of law above noted, it is noticed that offences prescribed under Sections 10(m) and 10(n) of the Act are triable by the Assistant Commandant/Judicial Magistrate, 1st Class being invested with the power of Magistrate according to the provision of Section 16(2) of the Act. The said section has clearly enshrined that the Central Government may invest the Commandant or Assistant Commandant with the power of Magistrate of any Class for the purpose of inquiring into or trying any offence committed by a Member of the Force and punishable under this Act. There is no dispute as regards such investing powers of Magistrate upon the Commandant or Assistant Commandant as for such purpose the Central Government had already notified vide GSR 161(E) dated 30.3.1974 which was published in Gazette of India dated 30.3.1974 (see foot note A of Section 16 of the Act). The Rule 36(B) which was mainly relied upon by the Appellate Court, has been incorporated under Chapter VI-A under the heading of 'PLACE OF TRIAL AND ADJUSTMENT OF JURISDICTION OF ORDINARY COURTS'. The expression 'Magistrate' occurring in Rule 36-B under this chapter VI-A of the Rules has been defined in the context of place of trial and adjustment of jurisdiction of only ordinary Courts and not in the context of power conferred upon the Central Government under Section 16(2) of the Act to invest the Commandant of Assistant Commandant to exercise power of a Magistrate to try offence under the Act. That being so, the Appellate Court it appears, misconstrued and misinterpreted this provision of Rule 36-B which has clearly referred to ordinary Courts other than Special Courts constituted under the Act. In Section 16(2) of the Act some special power or duties have been conferred or imposed on members of the Force entrusting special judicial powers for inquiry or trial of any offences committed by a member of the Force and also for resultant punishment under the Act. Therefore, the magisterial power so invested by the Central Government on the Commandant or the Asstt. Commandant for trial or any offence under the Act cannot be taken away by Rule 36-B wherein the meaning of Magistrate has been defined in relation to the ordinary Courts only. It is clearly provided under Section 16(2) of the Act that in case of offences like :
(i) When the offender is on leave or absent from duty or ;
(ii) When the offence is not connected with the offender's duty as a member of the force or ;
(iii) When it is a petty offence, even if connected with the offender's duties as a member of the Force.
the prescribed authorities like Commandant or Asstt. Commandant within the limit of whose jurisdiction such offence has been committed may direct that such offence may be inquired into or tried by an ordinary Criminal Court having jurisdiction in this matter. In case of trial of such offences by the ordinary Courts only, the definition of Magistrate as per the Rule 36-B is significant. In that view of the matter, I unhesitatingly hold that the Assistant Commandant exercising the power of Magistrate under Section 16(2) of the Act has the legal authority to try the offences which are exclusively covered under this Special Act enacted for the purpose of constitution and regulation of an Armed Central Reserve Police Force and the learned Addl. District Magistrate was absolutely wrong in holding that me Assistant Commandant/ Judicial Magistrate has no power to convict the respondent.
12. Now coming to the contentions made on behalf of the respondent to the effect that the respondent was not given the privilege of defending his case by engaging a pleader of his choice as envisaged under Section 303 CrPC which provides that any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code may of right be defended by a pleader of his choice. Ordinary reading of this provision makes it ample clear that a person is entitled to defend his case by engaging a pleader of his choice if he is accused of an offence before a Criminal Court or if any proceeding is initiated against him under this Code. Rule 36 of the Rules on the other hand seemingly envisages that all judicial trials in relation to the offences under Section 9 or 10 of the Act shall be held in accordance with the procedure laid down in Cr.PC. A bare perusal of the provisions of the Act and Rules goes to indicate that no procedure whatsoever for inquiry or trial for any offences committed by a member of the force under this Act has been prescribed under the Act and Rules save and except Rule 36. Therefore, it may be safely said that since a judicial trial of any offence under Section 9 or 10 of the Act is required to be held in accordance with the procedure laid down in the CrPC in terms of Rule 36 of the Rules, the respondent was entitled to such privilege of defending his case by engaging a pleader of his choice. On perusal of the records made available before this Court by the learned Addl. CGSC it patently transpires that no such opportunity was given to the respondent to defend his case by engaging a lawyer of his choice. Hence this Court finds that the conviction of the respondent by the Assistant Commandant/Judicial Magistrate 1st Class is in contravention of the provision of Section 303 CrPC and the same is also hit by principles of natural justice as the respondent was deprived of adequate opportunity to defend his case. Rule of natural justice requires that one should not be deprived of his vested right or be punished without having been given an opportunity to offer an explanation on his behalf. This principle stems from the maxim "Audit alteram partem" which means no one should be condemned unheard. The requirement of this maxim has two elements :- (1) The opportunity to make representation must be afforded ; and (2) such opportunity must be reasonable. The instant case is a glaring example of violation of such settled principle being contrary to the provision of Section 303 CrPC as the respondent was denied of his right to be defended by a pleader of his choice, a fundamental right guaranteed under Article 22(1) of the Constitution of India.
13. As regards the question of jurisdiction of the appellate court, i.e., the learned Addl. District Magistrate Aizawl to entertain the appeal in question, raised by the learned counsel for the appellant, on plain reading of the provisions of the Act and Rules, it is seen that there is no provision for appeal prescribed under the Act and the Rules to be preferred before the learned District Judge/District Magistrate under the ordinary court against the conviction and sentence under Section 10 of the Act passed by the learned Assistant Commandant under Section 16(2) of the Act. Rule 36 only prescribing judicial trials does not speaks of any provision of such appeal. In that view of the matter I find enough force in the submissions of the learned CGSC and accordingly it is held that the learned District Magistrate/Addl. District Magistrate in the present case, in absence of any specific provision of appeal in the Act itself, lacks jurisdiction to entertain the appeal in question arising out of conviction and sentence passed under this Special Act.
14. Having regard to the provisions of law referred herein above and upon hearing the learned counsel for the parties, this Court proposes to pass the following orders :-
(a) The learned Assistant Commandant/Judicial Magistrate, 1st Class has the power under Section 16(2) of the Act to try offence committed by the Member of the Force and to punish accordingly and is not a Magistrate as defined under Rule 36-B of the Rules.
(b) The conviction of respondent awarded by the learned Assistant Commandant/Judicial Magistrate, 1st Class is hereby set aside and quashed being violative of Section 303 Cr.PC.
(c) The learned Additional District Magistrate (J) Aizawl has no jurisdiction to entertain the appeal preferred by the respondent against the conviction and sentence passed by the learned Assistant Commandant/Judicial Magistrate 1st Class exercising power under Section 16(2) of the Act.
For the reasons, discussions and observations as indicated above, this Criminal Appeal is partly allowed.
Records placed before this Court be handed over to Mr. P. N. Choudhury, learned Addl. CGSC forthwith.