Nzanthong and Others vs The State of Nagaland

S. Haque, J.—A new procedural fashion unheard of and unseen bad been adopted by Mr. S. Lima Aier, Deputy Commissioner cum. District Magistrate, Kohima in the trial of this case. ''Discretion'' to follow the spirit of the Code also has a limit, but herein the Deputy Commissioner left no limit. The manner of exercising discretion in the name of following the spirit will be described in the following paragraphs.

Ten Appellants have preferred this appeal impugning the judgment dated 10.9.83 of the Deputy Commissioner, Kohima in Criminal complaint case No, 1/1082, Eight (8) Appellants being serial Nos. 1 to 8 had bean convicted under Sections 427/451/355/143 and 109 of the Indian Penal Code, sentencing to pay collective line of Rs. 2,00,000/- (two lakhs) and in default to undergo Rigorous Imprisonment for ten years on all the aforesaid counts. Two accused were not convicted namely Appellants No. 9 and 10, but were sent to Jail along with others to suffer the sentence.

Mr. Viyekha Rengma, Chairman of Village Kontsunyu lodged a written complaint addressing to the Deputy Commissioner and Sub-Divisional Officer (C) TSMEINYU to the effect that his house bad been totally destroyed by the villagers of Kontsunyu and Tsosesunyu on 14th November, 1982 and prayed for necessary action. The S.D.O. immediately rushed to the Police Station and got a case registered there on that complaint and Police started investigation, The S.D.O. along with Police visited the place of occurrence on that very day. The Deputy Commissioner also visited the place of occurrence on 15.11.82 with Police officials, Prompt action was taken to set Police into motion by referring the complaint under the provisions of Sub-section (3) of Section 156 of the Code of Criminal Procedure. The accused persons were arrested by Police on 15.11.82 during the course of investigation. That investigation it still pending without any report. In the meantime the trial was over on 10.9.83 by the Deputy Commissioner in his own fashion.

The Deputy Commissioner, in pursuant of Rule 30 of the Rules of Administration of Justice and Police, 1937 in NAGA HILLS, on first June, 1983, referred the dispute regarding its civil aspect of the incident for arbitration. The Deputy Commissioner was authorised to such procedure by that Rule 30 which runs as:

The Deputy Commissioner and his Assistants shall, in all cases in which the parties are indigenous inhabitants of the hills, endeavour to induce them to submit their case in a panchayat. If they agree to this, each party shall name an equal number of arbitrators, and shall choose, or leave the arbitrators to choose an umpire. The name and residence of arbitrators and umpire and the matter in dispute must be recorded before the proceedings commence, and the Court will direct the maussdar, gaonbura, chief, headman of a khel or soma other rseognised authority to assemble the panchayat and witnesses within tight days. When the case has been decided, the umpire shall appear with the parties before the Court, which shall proceed to record the decision and enforce it as its own. From such decision there shall be no appeal.

The Deputy Commissioner received a report from the Arbitrator Mr. Rigathong on 19.8.83 to the affect that they were usable to decide and tattle the matter between the parties. Thereupon, the Deputy Commissioner by his order dated 19.8.83 gave signal to the Sub-Divisional Officer Tsemeinyu to inform the villagers that he would hold Court by himself at the Rest House of Tsemeinyu on 9.9.83. Thus, it appears that the Deputy Commissioner decided to bold trial of the case as to the occurrence on 14.11.82. It was silent as to on what basis and bow Deputy Commissioner took cognizance of the offences.

On 8.9.83, the Deputy Commissioner visited the house of the victim and recorded joint statement of four inmates of that house. Neither the villagers nor the accused were present that day. The signal for their presence was for 9.9.83 In the Rest House. The accused persons bad no opportunity to cross examine those four witnesses on 8.9.83.

Again on 9.9.83. the Deputy Commissioner visited that village and recorded statement of S.D.O. On 10.9.83 the Deputy Commissioner recorded the statement of 5 witnesses in two different seta. The statements of two witnesses were jointly recorded and that of three Gaon-Buras were also recorded jointly. The G.B. (3) bad stated that they were not eye witnesses of the occurrence. The statements were not recorded on oath on all those three dates and the accused were not given opportunity to cross examine them. The complainant (victim) was not at alt examined in that trial. Some of the accused were examined on 9.9.83 and some on 10.9.83. Signature of Appellant No. 6 (six) was not obtained under his statement and Appellant No. 2 (two) was not at all examined,

The charges were framed on 10.9.83 under Sections 427/451/355/143 and 109 of the I.P.C. against nine accused who pleaded that they were physically present during the destruction, but did not participate in that criminal action. Their plea was recorded on the body of the charge. Virtually there was no plea of guilt. A plea of guilt must be unqualified, clean and unambiguous to act upon to convict straight way. Merely admitting the pre. sense at the place of occurrence, with a plea of non-participation in the criminal action, was a plea of innocence and not of guilt. But the Deputy Commissioner accepted that pl(sic) of the 9 accused as plea of guilt and convicted eight of them and remained silent for accused No. 9, The approach of the Deputy Commissioner was erroneous resulting miscarriage of justice.

Now, the question is whether the statement of the accused persons were recorded on the basis of the joint statements of the witnesses, u/s 313 of the Code or as defence witness u/s 315 of the Code. Some of them were examined on 9th and others on 19th September, 1983, On 9th the statements of the five prosecution witnesses were not recorded as those were recorded on 10th, so on 9th and 10th the accused were examined in two sets against varied proportion of joint statements of the prosecution or witnesses. The manner adopted in recording the statement of the accused was not fair at all. If examination of accused is felt necessary in trial, then it is done after closing the prosecution evidence or at any stage u/s 313 of the Code for explaining circumstances appearing in evidence. There must be some legal evidence in record for application of Section 313 of the Code. The joint statements recorded on 8th, 9th and 10th without oath and opportunity of cross examination by accused could not be accepted as legal evidence to utilise against accused, The Deputy Commissioner abruptly made up his mind to proceed with the trial at an interior village in shout notice and the accused were not at all defended with legal advice. They had not time to seek for legal advice nor they were given State defence. The manner of recording evidence and examination of the accused were irregular in violation of law and its spirit.

The victim was not examined by the Deputy Commissioner, but be was permitted to cross examine the accused persons. It is apparent on the face of record that some of the accused were cross examined by victim while their statements were recorded, Therefore, a reasonable presumption can be drawn that the Deputy Commissioner examined the accused persons as defence witnesses u/s 315 of the Code or following its spirit. If this view is considered, then the statements being defence evidence, could not have been considered like the statements u/s 315 to utilise against accused. The defence evidence must be read or considered after scrutiny of the prosecution evidence, to examine truthfulness of the prosecution evidence or to strengthen the prosecution evidence to reject the same. When it was not made clear, if the examination of the accused was u/s 313 or 315, then, the better course for a fair trial would be not to utilise those statements against the accused as corroboration to or strengthening the so called plea of guilt of the accused.

There is no provision in the Evidence Act or in any Code in force for recording evidence of witnesses jointly in any enquiry or trial. Such procedure of recording statements jointy was in clear violation of the provisions of law. Furthermore, no oath was administered to the witnesses, which ought to have been done, because those statements were recorded in that criminal proceeding to utilise against accused persons facing that trial. There is grave danger in recording statement, jointly, because it will be impossible to scrutinise as to which of the witnesses implicated which of the accused and in what manner or to know which of them is an eye witness. It could not also be that each witness will make similar statements in all material facts with another witnesses giving the scope for recording statement jointly. Such procedure cannot be accepted to have done under the spirit of any law and it must be discouraged in recording statements of witnesses jointly sad without administering oath all, are in violation of law.

The Deputy Commissioner knew of the incident on 15.11.82 while be personally visited the place of occurrence along: with S.D.O. and Police Officials, Furthermore; he knew it at the time when he referred the civil aspect of it for arbitration under the provisions of Rule 30 referred to above. But at no stage he decided to take cognizance u/s 190(1)(c) upon his own knowledge because it was known to him that the case was under Police investigation being referred u/s 156(3) of the Code. But on 9.8.83 the Deputy Commissioner abruptly made up his mind to start the trial of the case on failure of the arbitration, even knowing that ease was under Police investigation till then, The report of Arbitrator was not fresh complaint of that incident for taking cognisance by the Deputy Commissioner, The only course open to the Deputy Commissioner was to call for the report from the investigating agency and then to proceed in the matter. Once a complaint or FIR is referred by Magistrate to Police u/s 156(3) of the Code for action, and thereupon the case is registered and investigation proceeds, then tho Magistrate ceases power from taking co-guidance u/s 190(i)(a) of (e) of the Code. The proceeding opened sup moto by the Magistrate, thereafter, to try the same said offence, during pendency of Police investigation, the entire proceeding of the trial would be vitiated. The trial by the Deputy Commissioner on 8tb, 9tb and 10tb September; 1983 did not fall in any of the procedure for trial within the Code nor in the spirit thereof, The entire proceeding was illegal.

It was held by the Hon''ble Supreme Court in Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, that if the Magistrate decides that forwarding of a complaint to Police for investigation u/s 165(3) will be conducive to justice and the valuable time being wasted in enquiring into the matter which was primary duty of Police to investigate, the Magistrate will be justified in adopting that course as an alternative of taking cogoizance. In the instant case, the Sub-Divisional Officer to the knowledge of the Deputy Commissioner adopted that course and therefore, the abrupt trial taken suo moto, by the Deputy Commissioner in the manner as depicted, was absolutely an unfair trial.

It might be that the Deputy Commissioner was not versed with the provisions of Section 29(2) and proviso (b) of Sub-section (1) of Section 30 of the Code as to his power as Magistrate first class regarding imposition of amount of One and imprisonment on default thereto, or be was perhaps under the impression that his discretion in application of the Code in spirit was beyond the limit of the provision of the Code. Under what provisions or in the spirit of what provision he could impose collective fine of Rs. 2,00,000/- (two lakhs) on the Appellants and in default R.I. for 10(ten) years on alt the five counts of offences against each. The Deputy Commissioner committed illegality in this sphere also.

Who knows, how much of such illegalities committed in the name of application of the Code in spirit bad been swallowed by many illiterate tribal litigants in this Hill tract of Nagaland. Few of such cases, like the instant one only come to light for rectification. Separation of Judiciary from Executive and entrusting the sphere of dispensing justice to a set of Judicial Officers, free from executive influences the only remedy to avoid such injustices. The instant trial is an example as to what limit ''discretion'' of the authority in the name of following the Code inspirit, in Nagaland is used for disregarding the provisions and dishonoring lie essence of its spirit. The application of ''discretion'' should be maintained under some norms with uniformity, so long its applicability is permitted. The application of it, with variation in each case, at the sweet will of the Presiding Officer, is very much likely to shower injustice.

It is high lime for the Govt. of Nagaland to consider for full application of the Code of Criminal Procedure in letters and this, will be for the welfare of the backward tribes of the Stale who hope for a bright future.

With multiple legal infirmities and irregularities focused above, the impugned judgment with its order of conviction and sentence are all set aside, All the eighth) Appellants (Serial 1 to 8) are acquitted of the charges and set at liberty. The Appellants No. 9 and 10 are also set free. They are all discharged from their bailbonds.