Meghalaya High Court
Shri Sildhon N Sangma vs State Of Meghalaya on 1 August, 2017
IN THE HIGH COURT OF MEGHALAYA
AT SHILLONG
CRL. REV. P. No. 10 of 2016
Shri Sildon N. Sangma
S/o Shri John Baptist M. Marak
R/o Village: Matma Gittik,
P.S. Baghmara,
South Garo Hills, Meghalaya
.... Petitioner
- VERSUS -
1. The State of Meghalaya,
Represented by Secretary
Law, Government of Meghalaya.
2. Smti Karbalin G. Momin
D/o (L) Itdin R. Sangma
R/o Village Balsri Gittim,
P.O. & P.S. Baghmara,
South Garo Hills, Meghalaya. ... Respondents
BEFORE HON'BLE MR JUSTICE VED PRAKASH VAISH Present Ms. S.G. Momin ... Counsel for Petitioner Mr. S. Sen Gupta ... Counsel for Respondent No. 1 Ms. N.G. Shylla ... Counsel for Respondent No. 2 Date of Hearing ... 27.07.2017 Date of Judgment & Order ... 01.08.2017 BY HON'BLE MR. JUSTICE V.P. VAISH JUDGMENT&ORDER By way of the present revision petition under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (herein referred to as 'the Code'), the petitioner has impugned the order dated 30th July, 2015 passed by the learned Magistrate First Class, South Garo Hills District, Baghmara, whereby the interim maintenance was awarded to respondent No. 2 herein. The petitioner has also challenged the order dated 8th September, 2016 passed by Crl. Rev. P. No. 10 of 2016 Page 1 of 12 the learned Magistrate, whereby the amount of interim maintenance was ordered to be deducted from the salary of the petitioner.
2. In a nut shell, the case of the petitioner is that respondent No. 2 herein had filed a petition under Section 125 of the Code before the Magistrate First Class, South Garo Hills District, Baghmara. The petitioner appeared before the Trial Court on 30th July, 2015 and an interim maintenance @ Rs. 7000/- (Rupees Seven thousand only) per month was awarded to respondent No. 2 wife and children w.e.f. the date of filing of the petition. Against the said order dated 30th July, 2015, the petitioner preferred an appeal under Rule 21 of the Rules for the Administration of Justice and Police in the Garo Hills District, 1937. Thereafter, the learned Trial Court passed an order dated 8th September, 2016 and issued directions for deducting the amount of Rs. 7000/- (Rupees Seven thousand only) per month with retrospective effect from the month of July, 2015, from the salary of the petitioner.
3. Feeling aggrieved by the said order, the petitioner has filed the present petition.
4. Learned counsel for the petitioner urged that the Trial Court has no jurisdiction to try the present case, as both the parties belong to schedule tribes of South Garo Hills District and are residing in the same District. It is also submitted that as per the Sixth Schedule to the Constitution of India, if both the parties belong to tribal areas, the District Council Courts have jurisdiction to try such petitions. It is stated that the appeal filed by the petitioner is pending.
5. Learned counsel for the petitioner further submitted that the Government of Meghalaya has issued a Notification dated 30th Crl. Rev. P. No. 10 of 2016 Page 2 of 12 January, 1981, whereby all the cases triable by the District Council Courts were transferred to those Courts.
6. Learned counsel for respondent No. 2 also submitted that both the parties belong to schedule tribes of the same District and are residing in the same District and that the learned Magistrate First Class has no jurisdiction to try the present case. However, the learned counsel for respondent No. 2 urged that the respondent No. 2 is unable to go to the District Council Court because of insufficient funds.
7. I have given my careful consideration to the submissions made by learned counsel for both the parties. I have also gone through the material on record.
8. Before coming to the merits of the case, it is pertinent to mention here that Meghalaya was, initially, formed as an Autonomous State by virtue of Section 3 of the Assam Re- Organisation (Meghalaya) Act, 1969, which came into force with effect from 2nd April, 1970. The Autonomous State of Meghalaya was created within the State of Assam and the said Autonomous State of Meghalaya comprised of the Autonomous Garo Hills District, Autonomous District of Khasi Hills and Autonomous District of Jaintia Hills. Thereafter, North Eastern Areas (Re-Organisations) Act, 1971 was enacted, which came into force with effect from 21st January, 1972 and by virtue of the same, the State of Meghalaya came into existence and it comprised of the territories contained in the said Autonomous State of Meghalaya, the Cantonment and the Municipality Areas of Shillong. It is worthwhile to note here that prior to the enactment of the North Eastern Areas (Re-Organisations) Act, Crl. Rev. P. No. 10 of 2016 Page 3 of 12 1971 the areas contain in the Cantonment and the Municipality of Shillong (Known as Normal Areas) did not form part of the Autonomous State of Meghalaya. The Municipality of Shillong includes the Territories of Police Bazar, Jail Road and the General Ward, which is also known as the European Ward. It may also be noted that the Syiem (who is the customary Head of the Khasi Tribe) of Mylliem ceded to the Shillong Municipality some of the areas of Syiemship for the purpose of Municipal Administration, and these areas are known as Administered Areas of Shillong. In other words, Administered Areas means Areas falling within the town of Shillong, where Municipal Administration exists, but does not form part of the Normal Areas.
9. The entire State of Meghalaya, save and except the Cantonment Area and the Normal Areas, including Shillong Municipal Areas, form the Tribal Areas and the same are administered under the Sixth Schedule to the Constitution of India.
10. Under the United Khasi- Jaintia Hills Autonomous District (Administration of Justice) Rules, 1953, which came into force w.e.f 7.1.1954, the District Council Courts, Sub-ordinate District Council Courts, Additional Sub-ordinate District Council Courts and the Village Courts were constituted and these Courts have been vested with the powers to try Civil and Criminal cases as provided under the Rules of 1953.
11. The Shillong Municipality and the Cantonment Areas are administered under the Shillong Civil Courts Act, 1947 for Civil cases and under the Code of Criminal Procedure, 1973 (herein after referred to as 'the Code'), for Criminal cases. In the said two areas, Crl. Rev. P. No. 10 of 2016 Page 4 of 12 laws of Parliament and the State are applicable like that of any other Plain District of Assam, i.e., Civil Justice is vested in the District Judge and the Criminal Justice is vested in the Sessions Judge. By virtue of the Notification issued under the Extra Provincial Jurisdiction Act, 1947 and also by Notification issued under Section 1 (2)(b) of the Code, the Administered Areas of Shillong were brought under the jurisdiction of the Sessions Judge. Thus, the District and Sessions Judge and the Assistant Sessions Judge have power to try criminal cases in Normal and Administered Areas and Civil Cases in Normal Areas and Cantonment Areas.
12. Sub-Section (2) of Section 1 of the Code declares the applicability of the Code. By virtue of the declaration made under Sub-Section (2) of Section 1 of the Code, the Code of Criminal Procedure has no application to the tribal Areas except Chapters VIII, X and XI which are not relevant for the present case. However, the appropriate State Government is authorised to extent the operation of the Code of Criminal Procedure to the Tribal Areas. Sub-Section (2) of Section 1 of the Code reads as under: -
"1(2) It extends to the whole of India except the State of Jammu and Kashmir:
Provided that the provisions of this Code, other than those relating to Chapter 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 provision 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 Crl. Rev. P. No. 10 of 2016 Page 5 of 12 Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong."
13. Any legislative or administrative scheme for administration of justice has to conform to, and abide by, the scheme of administration of justice as envisaged by the Constitution of India. It is pertinent to mention here that the constitutional scheme with regards to administration of justice, in the tribal areas, that is, areas falling under the Autonomous District and Autonomous Regions is envisaged in Clause (2) of Article 244, contained in Part X of the Constitution of India, wherein it is made amply clear that the provision of the Sixth Schedule to the Constitution shall apply to the administration of tribal areas, in the State of Assam, Meghalaya, Tripura and Mizoram. These provisions purport to provide for a self- contained code for the governance of the tribal areas forming part of Assam and they deal with all the relevant topics in that behalf.
14. Paragraph 1 of the Sixth Schedule to the Constitution provides for the formation of an Autonomous District. Sub-paragraph (2) of paragraph 1 of the Sixth Schedule clearly mentions that if more than one Schedule Tribe inhabits in any one of those Autonomous Districts referred to in paragraph 1, the Governor may, by public notification, divide the area or areas inhabited by different Schedule Tribes into Autonomous Regions. Paragraph 2 of the Sixth Schedule to the Constitution envisages that there shall be a District Council for each Autonomous District and under sub-paragraph (2) provides that there shall be a separate Regional Council for each area constituted to be an Autonomous Region mentioned under sub-paragraph (2) of paragraph 1 of the Sixth Schedule. The administration of an Crl. Rev. P. No. 10 of 2016 Page 6 of 12 autonomous district in so far as it is not vested under the Schedule in any Regional Council within such District, is vested in the District Council for such district. Sub-paragraph (3) declares that each of the District or Regional Councils shall be a body corporate with perpetual succession and a common seal. The composition of such autonomous bodies and the manner of choosing persons for being members of such Autonomous District Councils is also specified. Sub-paragraph (4) provides that the administration of each of these Autonomous Districts or Regions shall vest in those bodies corporate respectively to the exclusion of each other. Sub-paragraph (5) deals with the distribution of powers between the Regional and Districts Councils.
15. Paragraphs 4 and 5 contained in the Sixth Schedule to the Constitution are pertinent for the purpose of determining the controversy at hand. The relevant provisions of Paragraph 4 reads as under:-
"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 Schedule 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.
(2) Notwithstanding anything in this Constitution, the Regional Council for an autonomous region or any court constituted in that behalf by the Regional Council or, if in respect of any area within an autonomous district there is no Regional Council, the District Council for such district, or any court constituted in that behalf by the District Council, shall exercise the powers of a court of appeal in respect of all suits and cases triable by a village Crl. Rev. P. No. 10 of 2016 Page 7 of 12 council or court constituted under sub-paragraph (1) of this paragraph within such region or area, as the case may be, other than those to which the provision of sub-paragraph (1) of paragraph 5 of this Schedule apply, and no other court except the High Court and the Supreme Court shall have jurisdiction over such suits or cases.
(3) The High Court shall have and exercise such jurisdiction over the suits and cases to which the provisions of sub-paragraph (2) of this paragraph apply as the Governor may from time to time by order specify.
(4)..................................................
(5).................................................."
16. The relevant provisions contained in Paragraph 5 of the Sixth Schedule to the Constitution runs as under:-
"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 trail 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 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.
(2) The Governor may withdraw or modify any of the powers conferred on a District Council, Regional Council, court or officer under sub-paragraph (1) of this paragraph.
(3) Save as expressly provided in this paragraph, the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, shall not apply to the trail of any suits, cases or offences in an autonomous district or in any autonomous region to which the provisions of this paragraph apply.
(4) On and from the date appointed by the President under sub-paragraph (5) of paragraph 4 in relation to any autonomous district or autonomous region, nothing contained in this paragraph shall, in its application to that Crl. Rev. P. No. 10 of 2016 Page 8 of 12 district or region, be deemed to authorise the Governor to confer on the District Council or Regional Council or on courts constituted by the District Council any of the powers referred to in sub-paragraph (1) of this paragraph.
17. A bare reading of Paragraph 4, as well as Paragraph 5, of the Sixth Schedule to the Constitution, makes it abundantly clear that these two paragraphs apply to the trial of suits and cases, the suits obviously being civil suits and the cases being criminal cases.
18. It is also noticeable that the Regional or District Council Courts hold trial of suits or cases between 'the parties', all of whom belong to Schedule Tribes within such areas meaning thereby, that in order to fall within the jurisdiction of the Regional or District Council Court, a civil suit or a criminal case must be such, which is between the parties, all of whom belong to the Schedule Tribes of such area or areas, which fall within the territorial limits of the jurisdiction of the Autonomous Districts or Autonomous Region, where the Regional Council Court or the District Council Court is situated. In other words, if two persons belonging to Schedule Tribes, come from two different areas or belong to two different autonomous districts or autonomous region, such suits or criminal cases cannot be tried by the District Council Courts or Regional Council Courts. To put it differently, the Regional or District Council Courts will deal with only those cases in which all the parties belong to the Schedule Tribes within the areas, which falls under a given Autonomous District or Autonomous Region. If two Schedule Tribe persons belong to two different Autonomous Districts or Regions, none of the District Council Courts, located in such Autonomous Districts or Regions, would be competent to try such suits or cases. It would logically Crl. Rev. P. No. 10 of 2016 Page 9 of 12 mean that if in a criminal case, an accused belongs to the Schedule Tribe of a particular area, but the complainant is either a non-tribal or a tribal from an Autonomous District, different from the one to which the accused belongs to, the District Council Courts will have no jurisdiction to try such a case. Similarly, when the dispute is between the Schedule tribe belonging to an Autonomous District or Region, on the one hand, and the State, on the other, such a dispute, civil or criminal, will not be triable by a Regional or a District Council Court, for, the State, as would be seen shortly, cannot be regarded as a tribal.
19. A careful reading of Paragraphs 4 and 5 of the Sixth Schedule makes it clear that there are two distinct categories of cases, which can be tried by the Regional or District Council Courts. Sub-paragraph (2) of Paragraph 4 shows that the Regional or District Council Courts can try only those suits or cases, which do not fall within sub-paragraph (1) of Paragraph 5 of the Sixth Schedule. It is also clear that when an offence is punishable with imprisonment for a term of less than five years, the Regional or District Council Courts shall be the only competent courts to try such offences if the accused as well as the complainant belong to the Schedule Tribe of an area falling under one and the same Autonomous District or Autonomous Region, where the District or Regional Council Court is situated. However, even if the complainant as well as the accused belong to the Schedule Tribe of a given District Council, the District Council Court cannot try such an accused for an offence if the offence is punishable with death, imprisonment for life or imprisonment for a term of not less than five years unless the Governor, in exercise of his powers under sub-paragraph (1) of Paragraph 5 of the Sixth Schedule Crl. Rev. P. No. 10 of 2016 Page 10 of 12 empowers the Regional or District Council Court to try such an offence. Further, even if the Governor has empowered a Judge of a District Council Court to try offences which are punishable with death, transportation for life or imprisonment for a term of not less than five years, such a Judge of District Council Court will still not be competent to try criminal cases, which are not confined to persons belonging to the Schedule Tribes falling under one and the same Autonomous District Council, where the District Council Court is situated or exercises jurisdiction.
20. It is also worthwhile to mention here that the Government of Meghalaya through its Law Department had issued Notification/Memo No. LJ/6973/58 dated 30th January, 1981 regarding to the transfer of cases triable by the District Council Courts and directed, inter alia, all the executive officers empowered at that time to immediately transfer all such cases which are triable by the District Council Courts to those Courts.
21. In the instant case, admittedly, both the parties belong to schedule tribes of the same District i.e. South Garo Hills District and are residing within the jurisdiction of the same District. Therefore, learned Magistrate has no jurisdiction to try the present case. Both the parties being tribal of the same District, the District Council Court has the jurisdiction to try the present case. The argument of counsel for respondent-wife that the respondent has got no means to approach the competent Court of District Council at Tura is of no consequence. In such a case, the respondent is at liberty to approach the District Legal Services Authority for the same. Crl. Rev. P. No. 10 of 2016 Page 11 of 12
22. In the light of aforesaid discussion, the learned Magistrate First Class, South Garo Hills District, Baghmara has no jurisdiction to try the present case. Accordingly, the impugned orders dated 30th July, 2015 and 8th September, 2016 are set aside and the Misc Case No. 04/2015 under Section 125 of the Code of Criminal Procedure is withdrawn from the learned Magistrate First Class, South Garo Hills District, Baghmara and transferred to the concerned District Council Court, at Tura with the directions to try the case in accordance with law.
23. Both the parties are directed to appear before District Council Court at Tura on 21st August, 2017.
24. A copy of this judgment be sent to learned Magistrate First Class, South Garo Hills District, Baghmara as well as to the concerned District Council Court, Tura. A copy of this judgment be also supplied to the counsel for respondent No. 2 as she is stated to have been appointed as Legal Aid counsel.
25. With the aforesaid observations, the revision petition stands disposed of.
CRL. M.C. No. 31 of 2016
The application is dismissed being infructous.
JUDGE Dated, 01st August, 2017 V. Lyndem Crl. Rev. P. No. 10 of 2016 Page 12 of 12