Lalpekkima Vs. State of Mizoram and anr. - Court Judgment

Excerpt:
- orderh. baruah, j.1. heard mr. p.c. prusty, learned counsel for the revision petitioner as well as mrs. dinari t. azyu, learned app for the state respondent no. 1.2. since the criminal trial no. 351/2009 has arisen on the lodgement of the first information report by the respondent no. 2 herein and since the investigating agency lodged the charge-sheet against the revision petitioner, the court considers that respondent no. 2 is not a necessary party to this revision petition while the state was taking care of the matters involved in the first information report so lodged by the respondent no. 2. as agreed upon by the learned counsel of either party, this court proposes to dispose of this criminal revision at the motion stage.3. the first information report having been lodged with bawngkawn police station by one smt. malsawmtluangi, bawngkawn police station case no. 76/2009 was registered under sections 448/354/427, ipc. in the first information report, it was alleged that on 22-2-2009 at around 5.00 p.m., the revision petitioner/accused herein illegality trespassed into the house of her younger sister and had create trouble and destroyed her household goods like dunlop, bedsheet, doors etc. amounting to rs. 4500/- approximately. it was also alleged that the revision petitioner/accused also assaulted her younger sister. police commenced investigation into the allegations brought in the form of fir. a charge-sheet under sections 448/354/427, ipc was laid against the revision petitioner/accused after completion of the investigation. the matter was placed before the additional district and sessions judge, which was made over to the first class magistrate, aizawl for disposal per provisions of section 192 of the criminal procedure code (for short the code).4. pursuant to summon, revision petitioner/accused made his presence available before the court of magistrate 1st class who having been found prima facie case under each of the sections framed charges under sections 448/354/427, ipc. on being explained and read over the charges to the revision petitioner, he pleaded guilty to each of the charges so framed against him. the trial court, accordingly, convicted the revision petitioner/accused in each of the charges and conjointly awarded a sentence of three years and fine of rs. 500/- in default 30 days s.i.5. being aggrieved thereby, the revision petitioner has approached this court by filing revision petition under section 397 r/w 401 of the code.6. mr. p. c. prusty, in support of the application submits that the learned trial magistrate, before awarding sentence on the plea of his guilt to each of the charges failed to record his statement as nearly as possible in the words of the accused/revision petitioner. referring to the provisions of section 252 of the code, mr. p. c. prusty submits that the learned magistrate overrides the provisions of section 252 of the code and therefore, the conviction and sentence awarded on the plea of guilt of the revision petitioner is not sustainable in law.7. sections 354 and 427, ipc provides punishments for 2 (two) years or fine or both respectively while section 448, ipc provides punishment for l(one) year imprisonment or fine of rs. 1,000/- or both. offence under sections 448 and 354, ipc are cognizable offences within the meaning of section 2(c) of the code, while offence under section 427 is a non-cognizable offence, cognizance of which the police without order of the magistrate cannot investigate into the offence. the investigating officer, therefore, finding the offences under sections 448/354 being the cognizable offences, commenced investigation and, accordingly, laid charge-sheet against the review petitioner/accused. when all the sections provide imprisonment not more than 2(two) years or fine or both, on filing of the charge-sheet, the trial court ought to have proceeded under chapter xx of the code. but, instead of that, the trial court proceeded to begin trial under chapter xix of the code of criminal procedure. warrant case as defined in section 2(x) means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. section 259 of the code empowered the courts to convert summons-cases into warrant cases. the trial court, on being lodged the final report under section 173 of the code, perhaps proceeded to try the offender by resorting to the provisions of section 259 of the code converting the summon case into warrant.8. section 218 of the code provides for framing of separate charges for distinct offences. charge-sheet being laid under sections 448/354/427, ipc every offence appears to be a distinct offence for which, the trial court framed charge separately. the trial court, though framed charge in each of the offences, failed to award punishment for each of the distinct offences rather conjointly awarded the sentence for 3 (three) years and fine of rs. 500/- in default to 30 days s.i. apparently, in this present case, all the offences were taken to be tried at one trial though, separate charges were framed for distinct offences. section 31 of the code reads as under:31. when a person is convicted at one trial of two or more offences, the court may, subject to the provisions of section 71 of the indian penal code, sentence him for such offences, to the several punishments, prescribed therefor which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.9. therefore, per dictation of this section, the trial magistrate ought to have awarded separate punishment as provided therefor, but instead of doing so, the trial magistrate conjointly awarded the sentence of 3(three) years and fine of rs. 500/- in default to 30 days s.i. in that situation, it is not discernible what was the punishment awarded in each of the charges so framed by the trial magistrate against the revision petitioner. the punishment being not passed in consonance with the provisions of section 31 of the code, the same cannot sustain in law.10. having considered the substantive laws as provided in the code in respect of awarding punishment for commission of offences tried in one trial, this court is of view that a punishment so awarded by the trial court is liable to be interfered with. accordingly, the punishment awarded vide order dated 9-4-2009 is set aside and quashed.11. the case is remanded back to the trial magistrate for de novo trial.12. it is informed by mr. p.c. prusty that the revision petitioner/accused is undergoing sentence. he be released forthwith. the trial court will be at liberty to issue summon to the revision petitioner/accused to make his presence available for the de novo trial. the trial court shall dispose of the case in accordance with law.13. the revision is accordingly disposed of.

Judgment:
ORDER

H. Baruah, J.

1. Heard Mr. P.C. Prusty, learned Counsel for the revision petitioner as well as Mrs. Dinari T. Azyu, learned APP for the State respondent No. 1.

2. Since the Criminal Trial No. 351/2009 has arisen on the lodgement of the First Information Report by the respondent No. 2 herein and since the Investigating Agency lodged the charge-sheet against the revision petitioner, the Court considers that respondent No. 2 is not a necessary party to this revision petition while the State was taking care of the matters involved in the First Information Report so lodged by the respondent No. 2. As agreed upon by the learned Counsel of either party, this Court proposes to dispose of this criminal revision at the motion stage.

3. The first information report having been lodged with Bawngkawn Police Station by one Smt. Malsawmtluangi, Bawngkawn Police Station Case No. 76/2009 was registered under Sections 448/354/427, IPC. In the first information report, it was alleged that on 22-2-2009 at around 5.00 p.m., the revision petitioner/accused herein illegality trespassed into the house of her younger sister and had create trouble and destroyed her household goods like Dunlop, Bedsheet, Doors etc. amounting to Rs. 4500/- approximately. It was also alleged that the revision petitioner/accused also assaulted her younger sister. Police commenced investigation into the allegations brought in the form of FIR. A charge-sheet under Sections 448/354/427, IPC was laid against the revision petitioner/accused after completion of the investigation. The matter was placed before the Additional District and Sessions Judge, which was made over to the First Class Magistrate, Aizawl for disposal per provisions of Section 192 of the Criminal Procedure Code (for short the Code).

4. Pursuant to summon, revision petitioner/accused made his presence available before the Court of Magistrate 1st Class who having been found prima facie case under each of the Sections framed charges under Sections 448/354/427, IPC. On being explained and read over the charges to the revision petitioner, he pleaded guilty to each of the charges so framed against him. The trial Court, accordingly, convicted the revision petitioner/accused in each of the charges and conjointly awarded a sentence of three years and fine of Rs. 500/- in default 30 days S.I.

5. Being aggrieved thereby, the revision petitioner has approached this Court by filing Revision Petition under Section 397 r/w 401 of the Code.

6. Mr. P. C. Prusty, in support of the application submits that the learned trial Magistrate, before awarding sentence on the plea of his guilt to each of the charges failed to record his statement as nearly as possible in the words of the accused/revision petitioner. Referring to the provisions of Section 252 of the Code, Mr. P. C. Prusty submits that the learned Magistrate overrides the provisions of Section 252 of the Code and therefore, the conviction and sentence awarded on the plea of guilt of the revision petitioner is not sustainable in law.

7. Sections 354 and 427, IPC provides punishments for 2 (two) years or fine or both respectively while Section 448, IPC provides punishment for l(one) year imprisonment or fine of Rs. 1,000/- or both. Offence under Sections 448 and 354, IPC are cognizable offences within the meaning of Section 2(c) of the Code, while offence under Section 427 is a non-cognizable offence, cognizance of which the police without order of the Magistrate cannot investigate into the offence. The investigating officer, therefore, finding the offences under Sections 448/354 being the cognizable offences, commenced investigation and, accordingly, laid charge-sheet against the review petitioner/accused. When all the Sections provide imprisonment not more than 2(two) years or fine or both, on filing of the charge-sheet, the trial Court ought to have proceeded under Chapter XX of the Code. But, instead of that, the trial Court proceeded to begin trial under Chapter XIX of the Code of Criminal Procedure. Warrant case as defined in Section 2(x) means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Section 259 of the Code empowered the Courts to convert summons-cases into warrant cases. The trial Court, on being lodged the final report under Section 173 of the Code, perhaps proceeded to try the offender by resorting to the provisions of Section 259 of the Code converting the summon case into warrant.

8. Section 218 of the Code provides for framing of separate charges for distinct offences. Charge-sheet being laid under Sections 448/354/427, IPC every offence appears to be a distinct offence for which, the trial Court framed charge separately. The trial Court, though framed charge in each of the offences, failed to award punishment for each of the distinct offences rather conjointly awarded the sentence for 3 (three) years and fine of Rs. 500/- in default to 30 days S.I. Apparently, in this present case, all the offences were taken to be tried at one trial though, separate charges were framed for distinct offences. Section 31 of the Code reads as under:

31. When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code, sentence him for such offences, to the several punishments, prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

9. Therefore, per dictation of this Section, the Trial Magistrate ought to have awarded separate punishment as provided therefor, but instead of doing so, the Trial Magistrate conjointly awarded the sentence of 3(three) years and fine of Rs. 500/- in default to 30 days S.I. In that situation, it is not discernible what was the punishment awarded in each of the charges so framed by the trial Magistrate against the revision petitioner. The punishment being not passed in consonance with the provisions of Section 31 of the Code, the same cannot sustain in law.

10. Having considered the substantive laws as provided in the Code in respect of awarding punishment for commission of offences tried in one trial, this Court is of view that a punishment so awarded by the trial Court is liable to be interfered with. Accordingly, the punishment awarded vide Order dated 9-4-2009 is set aside and quashed.

11. The case is remanded back to the trial Magistrate for de novo trial.

12. It is informed by Mr. P.C. Prusty that the revision petitioner/accused is undergoing sentence. He be released forthwith. The trial Court will be at liberty to issue summon to the revision petitioner/accused to make his presence available for the de novo trial. The trial Court shall dispose of the case in accordance with law.

13. The revision is accordingly disposed of.