THE STATE OF MEGHALAYA versus MELVIN SOHLANGPIAW on 11 February 2020

[2020] 4 S.C.R. 501

THE STATE OF MEGHALAYA

v.

MELVIN SOHLANGPIAW

(Special Leave To Appeal (Crl.) No.1218 of 2018)

FEBRUARY 11, 2020

[MOHAN M. SHANTANAGOUDARAND R. SUBHASH REDDY, JJ.]

Constitution of India: Sixth Schedule, Paragraph 4 and 5 –Respondent, a member of the Khasi Scheduled Tribe, was tried formurder of victim-deceased who also belonged to Khasi ScheduledTribe – Charge- sheet filed against respondent under ss.302 and201 IPC and case committed for trial to the Court of Sessions Judge– Respondent filed petition for transfer of the case to the Court ofJudge, Khasi Hills Autonomous District Council – High Courtallowed the petition – Hence the instant special leave petition –Whether the criminal case against the Respondent is exclusivelytriable by the District Council Court, having regard to the schemeand language of paragraphs 4 and 5 of the Sixth Schedule to theConstitution – Held: In exercise of powers under paragraph 4(4)of the Sixth Schedule to the Constitution, the United Khasi-JaintiaHills Autonomous District (Administration of Justice) Rules, 1953were adopted – r.9 provided for the constitution of one DistrictCouncil Court for the Khasi Hills Autonomous District and for theappointment of judges thereto – In exercise of such powers underr.9 and paragraph 5(1) of the Sixth Schedule, a notification waspublished on 07.02.2017, by which the Governor of Meghalayaappointed an Additional Judge to the District Council Court,Shillong and conferred her with powers for the trial of offencespunishable with death, transportation for life or imprisonment fora term of not less than five years under the IPC or any other lawapplicable in the Khasi Hills Autonomous District Council – Underparagraph 5(1), the Governor is invested with the power to conferthe District or Regional Council, or the courts set up by a DistrictCouncil, 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 ofpowers under the Cr.P.C. in certain instances, as was done by

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Anotification dated 07.02.2017 made it amply clear that the DistrictCouncil Court has jurisdiction to entertain criminal cases,notwithstanding the fact that the State is the de jure Complainant insuch cases and cannot be considered as a tribal party – Admittedly,the victim and the Respondent-accused both belonged to the KhasiScheduled Tribe – Upon a combined reading of paragraphs 4 andB5 of the Sixth Schedule, such District Council Court has the exclusivejurisdiction to entertain such a case – High Court was justified intransferring the criminal case against the Respondent-accused fromthe Court of Sessions Judge to the Autonomous District Council –The transferee Court, i.e. the District Council Court directed toCproceed with the trial in accordance with law – United Khasi-JaintiaHills Autonomous District (Administration of Justice) Rules, 1953 –r.9 – Code of Criminal Procedure, 1973 – Penal Code, 1860 – ss.302,201.

Disposing of the Special Leave Petition, the CourtD

Conclusion

Disposing of the Special Leave Petition, the CourtD

HELD: 1.1 The Sessions Court before which theRespondent was facing trial is a court established and functioningunder the provisions of the Code of Criminal Procedure, 1973.Notably, sub-section (2) of Section 1 of the Cr.P.C. provides thatthe Code has no application to tribal areas. At the same time, itEgives the State Government the power to extend the operationof the Cr.P.C. to tribal areas. The expression “tribal areas”occurring in Section 1 of the Cr.P.C. refers to the areas indicatedin the Fifth and Sixth Schedule of the Constitution. In the absenceof a notification by the State Government extending the Cr.P.C.to such areas, except chapters VIII, X and XI, the provisions ofFthe Cr.P.C. are not applicable to the tribal areas in the State ofMeghalaya, including the Khasi Hills District. Trial before theCourt of Sessions falls under Chapter XVIII of Cr.P.C. which doesnot apply to the tribal areas in question. [Para 6][508-D-E; 509-B-D]G1.2 Under the 6[[th]]

1.2 Under the 6[[th]] Schedule to the Constitution, Paragraphs4 and 5 deal with the administration of justice in AutonomousDistricts and Autonomous Regions referred to in paragraph 2 ofthe 6[th] Schedule. Paragraph 4(1) accords the District Council orRegional Council, as the case may be, with the power to constituteHCourts 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 byparagraph 5(1) of the 6[th] Schedule, wherein the Governor mayconfer on the District or Regional Council, or the courts set upby a District Council, or on any officer appointed by the Governorin that behalf, such powers under the Cr.P.C. or the CPC as theGovernor deems appropriate. Further, paragraph 4(4) stipulatesthat Courts set up by the District Council are to function inaccordance with the procedure evolved by the rules made by theDistrict Council or Regional Council, as the case may be. In theinstant case, in exercise of powers under paragraph 4(4) of the6[th] Schedule to the Constitution, the United Khasi-Jaintia HillsAutonomous District (Administration of Justice) Rules, 1953 wereadopted. In exercise of powers under Rule 9 and paragraph 5(1)of the 6[th] Schedule, notification was published on 07.02.2017, bywhich the Governor of Meghalaya appointed an Additional Judgeto the District Council Court, Shillong and conferred her withpowers for the trial of offences punishable with death,transportation for life or imprisonment for a term of not less thanfive years under the IPC or any other law applicable in the KhasiHills Autonomous District Council. [Paras 7-10][509-E-H; 510-A-C]

2.1 Paragraph 4 of the 6[th] Schedule contemplates the “trialof suits and cases between the parties all of whom belong toScheduled Tribes” to the exclusion of any other Court in the State.Though the expression “suits and cases” has not been defined inArticle 366 of the Constitution, the Cr.P.C., or the C.P.C., incommon 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 acriminal proceeding. Paragraph 4 itself refers to suits and casesto which provisions of paragraph 5(1) apply. [Paras 9.1, 9.2][510-E, G]

2.2 The conferral of powers under the Cr.P.C. in certaininstances, as has been done by notification dated 07.02.2017makes it amply clear that the District Council Court hasjurisdiction to entertain criminal cases, notwithstanding the factthat the State is the de jure Complainant in such cases and cannot AB

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Abe considered as a tribal party. In fact, it is reflective of an intentionto ascribe a broad meaning to the term ‘case’ under paragraph 4of the 6[th] Schedule. Such a reading of the term ‘cases’ is alsosubstantiated by the fact that paragraph 5 only empowers theGovernor to make the Cr.P.C. applicable to those cases wherethe punishment for the offence is not less than five years underBthe IPC. By necessary implication then, the Governor is notauthorized to invest any of the bodies mentioned in paragraph5(1) with the powers under Cr.P.C. for offences where thepunishment is less than five years. Reading paragraph 5 inconjunction with paragraph 4 inevitably leads to the conclusionCthat all such criminal cases are triable by the Courts constitutedunder paragraph 4 of the 6[th] Schedule, irrespective of the factthat de jure Complainant is the State, as long as both the accusedand the victim of the offence belong to the same Scheduled Tribe.Thus, the term “case” does not preclude criminal cases merelybecause the State is a party to such cases. Upon a close readingDof paragraphs 4 and 5 to the 6[th] Schedule, it becomes clear thatthe reference to “suits and cases between the parties all of whombelong to Scheduled Tribes” was in fact to the affected party(victim/Complainant) and the accused party. It is an admittedposition that the victim and the Respondent-accused both belongEto the Khasi Scheduled Tribe. Thus, given that there is specificnotification dated 07.02.2017 that confers the District CouncilCourt with the powers under Cr.P.C. to try certain criminaloffences, such conferral should be given effect. In fact, upon acombined reading of paragraphs 4 and 5 of the 6[th] Schedule, suchDistrict Council Court has the exclusive jurisdiction to entertainFsuch a case. The High Court was justified in transferring thecriminal case against the Respondent-accused from the Court ofSessions Judge to Autonomous District Council. The transfereeCourt, i.e. the District Council Court is directed to proceed withthe trial after framing of charges in accordance with law. [ParasG9.3-9.6, 10][511-B-H; 512-A-C]

Longsan Khongngain v. State of Meghalaya, (2012) 1Gauhati Law Reports 812 – referred to CRIMINAL APPELLATE JURISDICTION: Special LeavePetition (Criminal) No. 1218 of 2018.H

From the Judgment and Order dated 05.12.2017 of the High Courtof Meghalaya, Shillong in Transfer Petition (Criminal) No. 4 of 2017.

Ranjan Mukherjee, Upendra Mishra, Avijit Mani Tripathi, K.V.Kharlyngdoh, T.K. Nayak, P.S. Negi, Ms. Sruti Ram (Kochar), ChetanJoshi, Advs. for the Petitioner.

Ms. Liz Mathew, Navneet R., Ms. Sonali Jain, Advs. for theRespondent.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J.

1. The Respondent herein, a member of the Khasi ScheduledTribe, was being tried for the offences punishable under Sections 302and 201 of the Indian Penal Code (‘IPC’) before the Sessions Judge,Nongstoin, West Khasi Hills District. Briefly, the case set up by theprosecution is that a dead body was found lying on the Nondein riverbank on 26.03.2017, pursuant to which the Officer in Charge of PoliceStation, Nongstoin (‘Complainant’) was informed and an FIR wasregistered by him. Upon investigation, the identity of the deceased personwas known, who was also found to be a member of the Khasi ScheduledTribe. With the use of a SIM card recovered from her body, the last callsmade using her number were traced to the Respondent herein (accused).Consequently, the accused was arrested and he voluntarily lead the policeto the spot where he had buried the dead body. On 31.08.2017, achargesheet was filed against him under Sections 302 and 201, IPC. On08.11.2017, the case was committed for trial to the Court of the SessionsJudge, Nongstoin, West Khasi Hills District and the accused wassummoned to appear before it.

However, on the basis that the parties to the instant case are bothtribals and thus, the case is exclusively triable by the District CouncilCourt, the accused preferred a petition for transfer of the said case tothe Court of Judge, Khasi Hills Autonomous District Council, Shillong.Vide the impugned judgment dated 05.12.2017, the High Court ofMeghalaya, Shillong allowed this petition. The instant SLP has been filedagainst this order of the High Court.

2. At the very outset, it is important to note that the area wherethe alleged offence is said to have occurred, West Khasi Hills District, isa notified autonomous district included in the table appended to paragraph A

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A20 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 judicialdispensation in such areas is dealt with under paragraphs 4 and 5 of the6[th] Schedule to the Constitution as follows:

B4. Administration of justice in autonomous districts andautonomous regions.—(1) The Regional Council for anautonomous region in respect of areas within such region and theDistrict Council for an autonomous district in respect of areaswithin the district other than those which are under the authorityof the Regional Councils, if any, within the district may constituteCvillage councils or courts for the trial of suits and cases betweenthe parties all of whom belong to Scheduled Tribes within suchareas, other than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply, to the exclusionof any court in the State, and may appoint suitable persons to beDmembers of such village councils or presiding officers of suchcourts, and may also appoint such officers as may be necessaryfor the administration of the laws made under paragraph 3 of thisSchedule…

…(4) A Regional Council or District Council, as the case may be,Emay with the previous approval of the Governor make rulesregulating—

(a) the constitution of village councils and courts and the powersto be exercised by them under this paragraph; (b) the procedure to be followed by village councils or courts inFthe trial of suits and cases under sub-paragraph (1) of thisparagraph;

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

G(d) the enforcement of decisions and orders of such councils andcourts; (e) all other ancillary matters for the carrying out of the provisionsof sub-paragraphs (1) and (2) of this paragraph.

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5. Conferment of powers under the Code of Civil Procedure,1908, and the Code of Criminal Procedure, 1898 , on theRegional and District Councils and on certain courts andofficers for the trial of certain suits, cases and offences.—(1) The Governor may, for the trial of suits or cases arising out ofany law in force in any autonomous district or region being a lawspecified in that behalf by the Governor, or for the trial of offencespunishable with death, transportation for life, or imprisonment fora term of not less than five years under the Indian Penal Codeorunder any other law for the time being applicable to such districtor region, confer on the District Council or the Regional Councilhaving authority over such district or region or on courts constitutedby such District Council or on any officer appointed in that behalfby 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 ofthe powers so conferred.

(emphasis supplied)

3. Relying on these provisions, learned Counsel for the Petitionerurged that under paragraph 4 of the 6[th] Schedule to the Constitution, allof the parties to a suit or case must necessarily belong to ScheduledTribes within such areas, for the District Council Court to have exclusivejurisdiction over such suits or cases. Given that a criminal case is alwaysprosecuted by the State, he submitted that the instant case against theRespondent cannot be said to be a dispute between two tribals, as thedeceased is not and cannot be a party to such a case. He also urged thatthe Complainant, i.e. the Officer in Charge at the Police Station, canalso not be considered a party to the case, as he was acting in his officialcapacity and thus forms part of the State machinery.

4. Per contra, learned Counsel for the Respondent-accusedemphasized that a combined reading of paragraphs 4 and 5 of the 6[th]Schedule to the Constitution indicates a special dispensation for theadjudication of disputes in tribal areas, that must be given effect. Wherethe Governor exercises his power under paragraph 5(1) and entrusts theCourts set up by a District Council with the trial of certain kinds ofoffences, such Courts must have exclusive jurisdiction. In this regard,learned Counsel drew our attention to the notification dated 07.02.2017, A

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Avide which the Governor of Meghalaya conferred the judge of theAdditional District Council Court, Shillong, with the powers for the trialof offences punishable with death, transportation for life, or imprisonmentfor a term of not less than five years under the IPC or under any otherlaw applicable in the Khasi Hills Autonomous District Council for thetime being. In light of this, she submitted that the jurisdiction of the caseBagainst the Respondent rests exclusively with the District Council Court.Reliance was also placed on a Full Bench decision of the MeghalayaHigh Court in Longsan Khongngain v. State of Meghalaya, (2012) 1Gauhati Law Reports 812 in this regard.

5. Upon considering the material on record and the argumentsCadvanced by the parties, the central issue that arises for our considerationis whether the criminal case against the Respondent is exclusively triableby the District Council Court, having regard to the scheme and languageof paragraphs 4 and 5 of the 6[th] Schedule to the Constitution.

6. Before we delve into the provisions of the 6[th] Schedule, it is toDbe noted that the Sessions Court before which the Respondent wasfacing trial is a court established and functioning under the provisions ofthe Code of Criminal Procedure, 1973 (‘Cr.P.C.’). Notably, sub-section(2) of Section 1 of the Cr.P.C. provides that the Code has no applicationto tribal areas. At the same time, it gives the State Government theEpower 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

FProvided that the provisions of this Code, other than those relatingto Chapters VIII, X and XI thereof, shall not apply—

(a) to the State of Nagaland,

(b) to the tribal areas,

Gbut the concerned State Government may, by notification, applysuch provisions or any of them to the whole or part of the State ofNagaland or such tribal areas, as the case may be, with suchsupplemental, incidental or consequential modifications, as maybe specified in the notification.

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Explanation.— In this section, “tribal areas” means the territorieswhich immediately before the 21st day of January, 1972, wereincluded in the tribal areas of Assam, as referred to in paragraph20 of the Sixth Schedule to the Constitution, other than those withinthe local limits of the municipality of Shillong.

As seen above, the expression “tribal areas” occurring in Section1 of the Cr.P.C. refers to the areas indicated in the Fifth and Sixth Scheduleof the Constitution. In the absence of a notification by the StateGovernment extending the Cr.P.C. to such areas, except the threechapters referred above, the provisions of the Cr.P.C. are not applicableto the tribal areas in the State of Meghalaya, including the Khasi HillsDistrict.

Here, it would be useful to note that that Chapter VIII of theCr.P.C. deals with security for keeping peace and for good behaviour,Chapter X deals with maintenance of public order and tranquility, andChapter XI deals with preventive action of the Police. Evidently, none ofthese subjects falling under Chapter VIII, X and XI are relevant for thepurpose of deciding this matter. Trial before the Court of Sessions fallsunder Chapter XVIII of the Cr.P.C, which does not apply to the tribalareas in question.

7. Under the 6[th] Schedule to the Constitution, Paragraphs 4 and 5deal with the administration of justice in Autonomous Districts andAutonomous Regions referred to in paragraph 2 of the 6[th] Schedule. Asmentioned supra, paragraph 4(1) accords the District Council or RegionalCouncil, as the case may be, with the power to constitute Courts toexclusively try suits and cases where all parties thereto belong toScheduled Tribes within such areas. This, however, does not apply tothose suits and cases that are covered by paragraph 5(1) of the 6[th]Schedule, wherein the Governor may confer on the District or RegionalCouncil, or the courts set up by a District Council, or on any officerappointed 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 deemsappropriate. Further, paragraph 4(4) stipulates that Courts set up by theDistrict Council are to function in accordance with the procedure evolvedby the rules made by the District Council or Regional Council, as thecase may be.

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A8. In the instant case, in exercise of powers under paragraph 4(4)of the 6[th] Schedule to the Constitution, the United Khasi-Jaintia HillsAutonomous District (Administration of Justice) Rules, 1953 wereadopted. Rule 9 hereunder provides for the constitution of one DistrictCouncil Court for the Khasi Hills Autonomous District and for theappointment of judges thereto.B

In exercise of such powers under Rule 9 and paragraph 5(1) ofthe 6[th] Schedule, a notification was published on 07.02.2017, vide whichthe Governor of Meghalaya appointed an Additional Judge to the DistrictCouncil Court, Shillong and conferred her with powers for the trial ofoffences punishable with death, transportation for life or imprisonmentCfor a term of not less than five years under the IPC or any other lawapplicable in the Khasi Hills Autonomous District Council.

9. In light of such specific conferral of powers on the DistrictCouncil Court, Shillong, the issue to be examined is whether thejurisdiction to try the case against the Respondent rests solely with theDDistrict Council Court.

9.1 As mentioned supra, paragraph 4 of the 6[th] Schedulecontemplates the “trial of suits and cases between the parties all ofwhom belong to Scheduled Tribes” to the exclusion of any other Courtin the State. Though the expression “suits and cases” has not beenEdefined in Article 366 of the Constitution, the Cr.P.C., or the C.P.C., incommon legal parlance developed over the years, the expression ‘suit’is used to connote legal proceedings of a purely civil nature, while theterm ‘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 theFPetitioner that the term ‘case’ as used in paragraph 4 of the 6[th] Scheduleprecludes criminal cases, merely because the State is the de jurecomplainant in all such cases, it appears that their interpretation suggeststhat paragraph 4 of the 6[th] Schedule does not comprehend trial of criminalcases by the District Council Court at all. This, however, is not supportedGby the scheme of the 6[th] Schedule, specifically when a conjoint readingof paragraphs 4 and 5 is undertaken. As mentioned supra, paragraph 4itself refers to suits and cases to which provisions of paragraph 5(1)apply. Thus, to examine the content of “suits and cases” under paragraph4, it is first necessary to look to the content of paragraph 5(1).

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9.3 Under paragraph 5(1), the Governor is invested with the powerto confer the District or Regional Council, or the courts set up by aDistrict Council, or on any officer appointed by the Governor in thatbehalf, such powers under the Cr.P.C. or the C.P.C. as he deemsappropriate, for the trial of certain suits, cases, and offences. Theconferral of powers under the Cr.P.C. in certain instances, as has beendone by the notification dated 07.02.2017 here, makes it amply clearthat the District Council Court has jurisdiction to entertain criminal cases,notwithstanding the fact that the State is the de jure Complainant in suchcases and cannot be considered as a tribal party. In fact, it is reflectiveof an intention to ascribe a broad meaning to the term ‘case’ underparagraph 4 of the 6[th] Schedule.

9.4 Such a reading of the term ‘cases’ is also substantiated by thefact that paragraph 5 only empowers the Governor to make the Cr.P.C.applicable to those cases where the punishment for the offence is notless than five years under the IPC. By necessary implication then, theGovernor is not authorized to invest any of the bodies mentioned inparagraph 5(1) with the powers under Cr.P.C. for offences where thepunishment is less than five years. Reading paragraph 5 in conjunctionwith paragraph 4 inevitably leads to the conclusion that all such criminalcases are triable by the Courts constituted under paragraph 4 of the 6[th]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 thesame Scheduled Tribe.

9.5 Thus, in our considered opinion, the term “case” does notpreclude criminal cases merely because the State is a party to suchcases. Upon a close reading of paragraphs 4 and 5 to the 6[th] Schedule,it becomes clear that the reference to “suits and cases between theparties all of whom belong to Scheduled Tribes” was in fact to theaffected party (victim/Complainant) and the accused party.

9.6 In the instant case, it is an admitted position that the victimand the Respondent-accused both belong to the Khasi Scheduled Tribe.Thus, given that there is a specific notification dated 07.02.2017 thatconfers the District Council Court with the powers under Cr.P.C. to trycertain criminal offences, we find that such conferral should be giveneffect. In fact, upon a combined reading of paragraphs 4 and 5 of the 6[th]Schedule, such District Council Court has the exclusive jurisdiction toentertain such a case.

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10. In view of the foregoing, we do not find any grounds to interferewith the judgment and order dated 05.12.2017 passed by the High Courtof Meghalaya inasmuch as the High Court was justified in transferringthe criminal case against the Respondent-accused from the Court ofSessions Judge, Nongstoin, West Khasi Hills District to the Court ofJudge, Khasi Hills Autonomous District Council, Shillong.

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As mentioned supra, on 08.11.2017, the case against the accusedwas committed for trial to the Court of the Sessions Judge, Nongstoin,West Khasi Hills District and he was summoned to appear before it. Inview of the same, we now direct the transferee Court, i.e. the DistrictCouncil Court to issue fresh summons to the accused, if he has notCalready entered appearance, and to proceed with the trial after framingof charges in accordance with law. Furthermore, given that the incidentin question occurred in March, 2017, the District Council Court is directedto 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 suchDobservations, the instant Special Leave Petition is disposed of.

Devika Gujral

SLP disposed of.

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