WP (Crl.)/1/2009 of Sunil Dass Rai Vs State of Sikkim and Others on 2 November 2009

1. State of SikEL,Service through the Chief Secretary,Government of Sikkim,Gangtok (Sikkim) .

2. State of Sikrfu,Service throuch the Secretary,Home Department,Government of Sikkim,Gangtok (Sikkin).

3. State of SikEL,Se.rvice throuch the Secretary,Law Deparinent,Government of Sikkim ,Gangtok (Sikkin) .

4. Sonam Detchu Bhutia (O.C.),P.S. Namchi,Namchi, South Sikkin.

...Respondents

For petitioner : Mr. Gulshan Rai Nagpal, AdvocateFor Respondents : Mr. KarmaProsecutor 'Ihinlay, Additional Public Date Of Hearing02.11.2009Dctte Of Judgment02.11.2009

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PRESENT : HON'BLE THE CHIEF JUSTICE

MR. JUSTICE AF'IIAB H. SAIKIAHOH'BLE mR. uusTlcE A.p. SUBBA, UUDGE

JUDGMENT AND ORDER OEL

Scrfk±a, CH

Heard Mr. Gulshan Rai Nagpal, leaned Counsel for thePetitioner as wen as Mr. Karma 'Thinlay, learned Addi. PubHcProsecutor for the State.

By means of this application filed under Articles226/227 of the Constitution of India read with Sections 397 and482 of the Code of Cininal FTocedure, 1973 (for short, `Cr. P.C.),the petitioner has sought for quashment of the order dated03.02.2009 passed by the learned Judicial Magistrate (South) atNamchi (for short, the leaned Magistrate) in Crl. Ponce Act CaseNo. 10 of 2009 by which cognjzance has been taken to initiate theimpugned criminal proceeding under Section 169 (1) (b) of SilckimPolice Act, 2008 (for short, the Act) against the petitioner, who isadmittedly a minor and school student of loth Class.

For the sake of convenience, the relevant provisions ofSection 169 (1) of the Act is reprodnced as under:

"169. (1) Any person who commits any of the followingoffences on any road, or street or thorouchfare, or anyopen place, within the linits of ally al.ea speciallynotified by the State Government or a Local Governmentfor the purpose of this Section, to the inconvenience,offences on any road, or street or thorouchfare, or anyopen place, within the linits of ally al.ea speciallynotified by the State Government or a Local Governmentfor the purpose of this Section, to the inconvenience, +11``.`0

armoyance or danger of the residents or passers-byshall, on conviction by a Court, be liable to a fine:

(a)

(b) being found intoxicated and/riotous;

(2) The state Government may, by notification in theOfficial Gazette, prescribe a mininum amount of finethat shall be inposed on a person on conviction for anyoffence mentioned in sub-section {1)."

'Ihe relevant facts of the case in brief would benecessary for proper disposal of this petition, which are nalTatedhereunder.

The petitioner was, on 15.2.2009, served with asummon to appear before the Court of the leaned Magistrate on17.02.2009 to answer the charges under Section 169 of the Act,whereby the petitioner was also given opporturiity to file anapplication for plea bargaining under Section 2658 Cr. P.C. On hisappearance, pursuant to such summon, the petitioner came toknow that on 15.11.2008, the Namchi PoHce registered a Non F.I.R.Case No. 164 (11) 08 against hin and the police also submittedprosecution report in the concerned Court.

On the basis of the prosecution report, the learnedMagistrate took cognizance of the offence under Section 169 (1) (b)of the Act against the petitioner. A crininal proceeding wasinitiated and folwarded the same to the Juvenile Justice Board, South District at Namchi (for short, the Board) where the case wasregistered as J.J.B. Case No. 2 of 2009.

On 17.2.2009, the petitioner along with his engagedlearned Counsel appeared before the Board, being presided over bythe Principal Magistrate, and ffled an appfication praying that hemight be discharged as no cogrizance could be taken forcommitting any alleged offence under the Act at the relevant time ofthe commission of offence i.e. on 15.11.2008 as the Act did notprovide any penal provision as required under Section 169 (2) ofthe Act. However, by inpug|ied orders dated 17.02.2009 and19.03.2009, the prayer for passing necessary orders forcanceuation of cognizance already taken was rejected and thelearned Magistrate proceeded with the case and issued summons tothe witnesses.

Challenging the inpugned orders dated 03.02.2009,17.02.2009 and 19.03.2009 and also the initiation of the entirecriminal proceeding against the petitioner who was admittedly heldto be a juvenile, the learned Counsel appearing for the petitionerhas forcefully argued that at the time of alleged act of o.ffence on15.11.2008, the provision for punishment so contemplated underSection 169(2) of the Act as already noted above has not beennotified and as such initiation of the crininal proceedin.g againstthe petitioner by taking cognizance under Section 169 (1) (b)without having a penal provision in force under Section 169 is not tenable in law. Since the punishment for such offence has notbeen in force on the relevant date, the entire proceeding is withoutjurisdiction and an abuse of the process of the Court andaccordingly, it is submitted, the inpugried orders and the entireproceeding are liable to be set aside and quashed.

The basic thrust of argument advanced on behalf of thepetitioner is that althouch the Act came into force on 04.08.2008on the pubfication of the same in the Sildrim Government Gazetteitself, Section 169 (2) of the Act has not broucht into force and thesame has been enforced only on 04.03.2009 by the Notifiicationdated 20.02.2009 pubHshed in Sikkim Government Gazette dated04.03.2009, which reads as under:

GOVERNMENT OF SIKKIMHOME DEPARTMENTGANGTOK

No. 09/Home/2009

Dated: 20.02.2009

NOTIFICATION

In exercise of the powers conferred under sub-section (2) of section 169 of the Si]ddm Police Act, 2008,the State Government hereby prescribes the followingminimum amount of fine that shall be imposed on aperson on conviction for any offence mentioned in sub-section ( 1) of section 169 of the said Act:-

(1) Whoever commits any offence under sub-section (1)of section 169 of the Si]ddm Police Act, 2008 shall bepunishable with fine which may extend to rupees fivehundred.

(2) Whoever having been convicted of an offence underthis section is again convicted of any offence under thesame section, shall be punishable, for the second and l j!``\-`-`- .

~31"£'-C)

for each subsequent offence, with double the penaltyprovided for that offence.

BY ORDER.

N.D. CHINGAPA, IASCHIEF SECRETARYF.NO.Home/Cord/ 127/2007/ (2)Part "

10. We have meticulously gone throuch the factualsituation as wen as the provisions of law laid down under Section169 of the Act as indicated above. It appears that it is coITect thaton the date of the alleged offence committed by the Petitioner on15.11.2008, althouch Section 169 is in force, the penal provisioni.e. Section 169 (2) has not been notified. In other words, theoffence in question alleged to have been committed under Section169 (1) (a) was not subject to any punishment as required underSection 169 (2) of the Act.

11. That being the position, we are of the firm view that theinitiation of the inpugned criminal proceeding has resulted incontravention of the provision of law contemplated under Section169(2) of the Act.

12. We, accordingly, hold that in absence of any penalprovision, none of the act mentioned under Section 169 of the Actcan be telmed as an offence within the mealiing of the Indian Penal ±-rl9`1._`e Code (for short, `IPC) or the General Clauses Act, 1897. Unless anoffence is made punishable, no act or omission can be said to be an`offence' and tarfug cognizance of the same would be palpablywithoutjurisdiction.

13. IPc defines `offence' under section 40 as under:

" `Offence' - Except in the Chapters and sectionsmentioned in clauses 2 and 3 of this section, theword "offence" denotes a thing made punishableby this Code."

14. `Offence' has also been defined under the GeneralClauses Act in Section 3(38) which is:

" `offence' shall mean any act or omission madepunishable by any law for the time being in force;"

15. The essence of the definition of `offence' as quoted aboveis the punishabilit5r by law. In other words, the test of anythingbeing an offence is that it must be punishable under the law for thetime being in force.

16. In view of the above, we Have no hesitation to interferewith the crininal proceedings being J.J.B. Case No. 02 of 2008 nowpending before the Juvenile Justice 13oard (South) at Namchi.Accordingly, the inpugried criminal proceeding as well as theimpugned orders dated 03.02.2009, 17.02.2009 and 19.03.2009stand quashed and set aside.

17. In the result, the writ petition stands allowed.

18. However, having considered the facts andcircumstances of the case, there shall be no order as to costs.

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