Meghalaya High Court: In an appeal challenging to the authority of the District and Sessions Judge of Meghalaya, who conducted the criminal trial and convicted the appellant and sentenced him to life imprisonment, to adjudicate the matter, a division judge bench of Sanjib Banerjee*, C.J. and W. Diengdoh, J. held that once the authority in terms of paragraph 5(1) of the Sixth Schedule to the Constitution is conferred on a Court or an officer, the Governor has residuary power to carve out a part of the authority already conferred and vest the same in some other Court or officer. Thus, the office of the District and Sessions Judge, as specified in the Meghalaya Judicial Service Rules, 2006 is vested with the power to try the case involving a death sentence. Therefore, it upheld the judgment of conviction and the sentence of life imprisonment awarded by the Trial Court The appellant questioned the notification dated 29-05-2014 issued under the orders of the Governor on the ground that the Criminal Procedure Code, 1973 (‘CrPC’) has not been notified in the State, thus, there could have been no Sessions Division in terms of Section 9 of the CrPC, 1973.
The second ground of challenge was that since the power to try criminal cases pertaining to heinous offences had already been conferred to a named Judge by the notification dated 10-08-2011 the Governor had no residuary authority to carve out a part of the authority and confer the same on any other court or officer. The appellant argued that the reading of paragraph 5(1) of the VI Schedule of the Constitution of India was that all the power had to be conferred on one Court or officer and not be divided and conferred on various Courts or officers.
Lastly, that there was a distinction between a Court and an officer in paragraph 5(1) of the Schedule VI of the Constitution of India. It was pointed out that the notification of 29-05-2014 clearly stipulated that such notification superseded all earlier notifications in respect of the matters covered thereby pertaining to the East Khasi Hills district.
According to the appellant, the Schedule VI of the Constitution of India, envisaged that the District Council Courts took up all disputes between tribals within the jurisdiction of the District Council Court in the same area.
The Court noted that at the time that the Constitution came into effect with the Sixth Schedule therein, paragraph 5 provided that neither the Code of Civil Procedure, 1908 nor the Code of Criminal Procedure, 1898 (now 1973) would apply, except as expressly provided in such provision. It also took note of Meghalaya Judicial Service Rules, 2006, wherein Schedule-‘A’ to such rules refers to a post by the name of District and Sessions Judge
The Court said that the notification dated 29-05-2014 clearly stipulated that such notification superseded all earlier notifications in respect of the matters covered thereby pertaining to the East Khasi Hills district.
The Court said that two important factors to kept in mind is the gradual and delayed transition of judicial authority from the executive wing to Courts, be it to the District Council Courts in accordance with the Sixth Schedule to the Constitution or the regular judiciary as otherwise envisaged in the Constitution other than the Sixth Schedule thereto. The second aspect is the seemingly parallel, but not overlapping, functioning of the District Council Courts and the regular judiciary in this State which is almost entirely covered by the Sixth Schedule.
The Court said that there is no doubt that paragraph 4 vests the administration of justice in autonomous districts with the District Council Courts, but such authority comes with two warnings indicated by the expressions “between the parties all of whom belong to Scheduled Tribes within such areas” and “other than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply”. The word “cases” in the second expression would take within its fold all matters covered by paragraph 5(1) of the same Schedule other than suits.
The Court further said that Paragraph 5 of the Sixth Schedule to the Constitution makes a clear distinction between other criminal matters and criminal matters pertaining to the trial of offences punishable with death, transportation for life or imprisonment for a term of not less than five years. In respect of such serious criminal cases pertaining to offences under the Penal Code or any other law applicable to the relevant district, the Governor is empowered to specifically confer authority on bodies and persons. Such authority may be conferred on a district council having authority over such district or courts constituted by such district council or on any officer appointed in that behalf by the Governor. The fact that since CrPC had not been notified and sessions divisions had not been declared in accordance with Section 9 CrPC, would matter little. Appointments were made by the Governor on the recommendations of the High Court to the post designated as District and Sessions Judge and the conferment of authority by the Governor was either to a person holding such post or generally to that office.
Thus, the Court held that there is no merit in the objection raised by the appellant as to the jurisdiction of the trial court in this case to conduct the criminal trial, adjudicate the matter and pronounce its judgment and order .In terms of the notification of 03-05-2018, the office of the District and Sessions Judge, as specified in the Meghalaya Judicial Service Rules, 2006 was vested with the power to try he present case as it involved a death sentence and the appellant’s challenge to such authority is in vain.
[Komerchand Sing Wanrieh v State of Meghalaya, 2023 SCC OnLine Megh 51, decided on 17-02-2023]
Advocates who appeared in this case :
For Appellant: Senior Advocate H.L. Shangreiso;
Advocate R. Majaw;
Advocate A. Syiem;
For Respondent: Advocate General A. Kumar;
Additional Senior GovernmentAdvocate S. Sengupta;
Advocate S. Laloo;
Government Advocate A. Thungwa;
Senior Advocate S.P. Mahanta with;
Advocate L. M. Sangma;
Advocate D. Dkhar.
*Judgment authored by: Chief Justice Sanjib Banerjee
