Consideration of the matters involving tribal communities would not be complete without a reference to the constitutional provision of the Sixth Schedule.: Meghalaya High Court

Serial No. 01 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG Crl.Rev.P. No. 21 with Crl.Rev.P. No. 21 Date of Decision: 25.11.2021 Shri Donbok Buam & 3 Ors. Shri. Donbok Buam Vs. Superintendent of Police & Anr. Vs. Superintendent of Police & Anr. Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Mr. E. Nongbri Adv. Mr. T.L. Jyrwa GA. Ms. R. Colney GA. for R 1. Ms. P.S. Nongbri Adv. for R 2. ii) Whether approved for publication in press: The issue involved in these two cases is one in the same that is with regard to trial of cases before the District Council Court where both parties belongs to the tribal community of the State of Meghalaya. Therefore it is deemed convenient to take up these cases and to pass a common order. The grievance of the Petitioners is that the learned Addl. Deputy CommissionerWest Jaintia Hills Jowai on an application filed by the Petitioners for transfer of a criminal case being GR Case No. 218 referred to in Crl.Rev.P. No. 21 and GR Case No. 418 referred to in Crl.Rev.P. No. 4 of 2021 from the court of the learned Judicial Magistrate Amlarem Sub Division to the District Council Court Jowai the learned Addl. Deputy Commissioner vide order dated 10.03.2021 in both cases has rejected the prayer made. Hence these petitions. A brief background of the case is that a complaint was filed against the Petitioners herein by one Smti Baiamonlang Tariang which case after investigation culminated in filing of the charge sheet and registration of GR Case No. 218 u s 477 188 34 IPC and in another complaint against the Petitioner No.1 herein being GR Case No. 43 of 2018 u s 506 IPC was instituted before the said Judicial Magistrate Amlarem. The Petitioners have then preferred an application before the Court of the Deputy Commissionerat Jowai u s 408 Cr.P.C r w Rule 2 and 14 of the Khasi SyiemshipRules 1950 seeking for transfer of the above cases to the District Council Court on the ground that both parties are members of the tribal community of the State of Meghalaya and as such the District Council Court has exclusive jurisdiction to try cases of this kind. Again as stated above the learned Deputy Commissioner Judicial) vide impugned order had dismissed the respective applications on the ground that no power is vested on the Court of the Addl. Deputy Commissioner to transfer original cases from one criminal court within its jurisdiction to other criminal courts under the jurisdiction of the District Council Court. 5. Mr. E. Nongbri learned counsel for the Petitioner has submitted that the learned Deputy Commissioner has failed to comprehend the import of the constitutional provision of the Sixth Schedule to the Constitution of India wherein at paragraphs 4 and 5 of the same it is clearly stipulated that trial of suits and cases between the parties all of whom belonged to Scheduled Tribe within the area of the District Council are to be tried by courts constituted by the said District Council. It is also the submission of the learned counsel that the Court below has failed to appreciate the relevant judicial pronouncements by the High Court as well as the Hon’ble Supreme Court in this regard particularly the case of State of Meghalaya v. Richard Lyngdoh:2 GLR 238 and also the case of State of Meghalaya v. Melvin Sohlangpiaw:3 SCC 711 which are some of the conclusive authorities as regard the issue of jurisdiction of the District Council Court to try suits and cases between members of the Scheduled Tribe community. Further submitting that the learned court below has failed to appreciate the law provided in the Khasi SyiemshipOrder 1950 and has passed the impugned order in clear violation of the said provision of law. It is therefore submitted that this Court exercising its jurisdiction under Article 227 of the Constitution of India r w Section 401 and 407 Cr.P.C may be pleased to set aside the impugned order dated 10.03.2021 and to direct the transfer of the GR case in question to the District Council Court for trial. 9. Mr. T.L. Jyrwa learned GA for Respondent No. 1 and Ms. P.S. Nongbri learned counsel for Respondent No. 2 in response to the contention and submission made by the learned counsel for the Petitioner has fairly and candidly conceded that the proposition of law as advanced is correct and that the authorities cited by the learned counsel for the Petitioner are relevant to the subject matter and as such no strong objection is raised for the impugned order to be set aside and quashed and consequently for transfer of the above GR cases to the District Council Court Jowai. 10. While appreciating the submission and contentions of the learned counsels for the parties the issue involved is no longer res integra as the same has been laid to rest by way of several judicial pronouncements of the High Court as well as of the Supreme Court. However for the limited purpose in the facts and circumstances of the case in hand it may be profitable to refer to some of those judicial pronouncements to bring clarity to the dispute between the parties. 11. Consideration of the matter would not be complete without a reference to the constitutional provision of the Sixth Schedule. Extracts of paragraphs 4 and 5 of the Sixth Schedule to the Constitution of India is reproduced herein below: “4. Administration of justice in autonomous districts and autonomous regions.—(1) The Regional Council for an autonomous region in respect of areas within such region and the District Council for an autonomous district in respect of areas within the district other than those which are under the authority of the Regional Councils if any within the district may constitute village councils or courts for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas other than suits and cases to which the provisions of sub paragraphof paragraph 5 of this Schedule apply to the exclusion of any court in the State and may appoint suitable persons to be members of such village councils or presiding officers of such courts and may also appoint such officers as may be necessary for the administration of the laws made under paragraph 3 of this Schedule …” “5. Conferment of powers under the Code of Civil Procedure 1908 and the Code of Criminal Procedure 1898 on the Regional and District Councils and on certain courts and officers for the trial of certain suits cases and offences.—(1) The Governor may for the trial of suits or cases arising out of any law in force in any autonomous district or region being a law specified in that behalf by the Governor or for the trial of offences punishable with death transportation for life or imprisonment for a term of not less than five years under the Indian Penal Code or under any other law for the time being applicable to such district or region confer on the District Council or the Regional Council having authority over such district or region or on courts constituted by such District Council or on any officer appointed in that behalf by 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 of the powers so conferred............” In the case of State of Meghalaya v. Richard Lyngdoh(supra) at paragraph 8 the Gauhati High Court had observed as follows: “8. Administration of Justice in the Tribal areas of the State of Meghalaya is carried on as per the provisions of Paragraphs 4 and 5 of the Sixth Schedule to the Constitution of India and in terms of Khasi Syiemships Order 1950 the Rules for Administration of Justice and Police in Khasi and Jaintia Hills 1937 the United Khasi Jaintia Hills Autonomous District Rules 1953 Rules for Administration of Justice and Police in the Garo Hills 1937 and the Garo Hills Autonomous DistrictRules 1953”. 13. Again at paragraph 19 of the abovementioned judgment the Gauhati High Court has observed as follows: “19. What logically follows from a combined reading of sub paragraph of paragraph 5 and sub paragraph of paragraph 4 of the Sixth Schedule to the Constitution of India is that when an offence punishable either under the Indian Penal Code or under any other law is one which is punishable with imprisonment for a term of less than five years the Regional or District Council Court shall be the only competent court to try such offences if the accused as well as the complainant belong to the Scheduled Tribe of an area falling under one and the same autonomous district or autonomous region where the District or Regional Council Court is situated. However even if the complainant as well as the accused belong to Scheduled Tribe of a given District Council the District Council Court cannot try such an accused for an offence if the offence is such which is punishable with death imprisonment for life or imprisonment for a term of not less than five years unless the Governor in exercise of his powers under sub paragraph of paragraph 5 of the Sixth Schedule empowers the Regional or District Council Court to try such an offence. Moreover even if a Governor has empowered a Judge of a District Council Court or a District Council Court to try offences which are punishable with death transportation for life or imprisonment for a term of not less than five years such a Judge or District Council Court will still not be competent to try criminal cases which are not confined to persons belonging to the Scheduled Tribes falling under one and the same autonomous district council where the District Council Court is situated or exercises jurisdiction”. 14. Yet again at paragraph 36 the Gauhati High Court while discussing the case of U Yur Rynjah v. State: Criminal Revision No. 767 the Government Notification No L.J. 69 73 58 dated 30th January 1981 was referred to and has held that “ In the aforesaid circular it was directed that under the Meghalaya Autonomous District Administration of Justice Miscellaneous Provision) Act the Deputy Commissioner and an Assistant to the Deputy Commissioner have no power to try any case which is exclusively triable by any Court constituted by the District Council under paragraph 4 of the Sixth Schedule to the Constitution and that any such case which at any stage after the Deputy Commissioner or Assistant to him has taken cognizance of transpires to be so triable shall have to be transferred to the competent court of the District Council immediately. Following the above direction the learned Additional Deputy Commissioner observed that in the circumstances the case was triable only by the District Council Court and that either the Deputy Commissioner or Assistant to him had no jurisdiction excepting taking cognizance of the offence and that as soon as the cognizance of the offence is taken the Deputy Commissioner or Assistant to him is to transfer the case to the competent court i.e. the Court constituted by the Governor under paragraph 5 of Sixth Schedule of the Constitution of India”. 15. The Hon’ble Supreme Court in the case of Melvin Sohlangpiaw v. Melvin Sohlangpiaw(supra) has in essence confirmed the position which found place in the case of Richard Lyngdoh(supra) inasmuch as cases between the parties particularly those who belongs to the Scheduled Tribe community of the State of Meghalaya as far as jurisdiction is concerned in view of the provision of Paragraphs 4 and 5 of the Sixth Schedule of the Constitution of India lies with the respective District Council Courts. Extracts of para 10.4 of the said Melvin Sohlangpiaw case reads as follows: “10.4. ..Reading Para 5 in conjunction with Para 4 inevitably leads to the conclusion that all such criminal cases are triable by the courts constituted under Para 4 of Schedule VI 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 the same Scheduled Tribe”. In the light of the above the impugned order dated 10.03.2021 cannot stand the scrutiny of law and procedure and are liable to be set aside and quashed. 17. Consequently the petitions in question are hereby allowed and the learned Additional Deputy Commissioner(Judicial) Jowai is hereby directed to transfer the cases of the Petitioner(s) to the Court of the Judge District Council Court Jowai who will then proceed to dispose of the same or endorse the cases to any Court of competent jurisdiction. 18. Matters disposed of accordingly. No cost. Judge “D. Nary PS” 

Summary: Cases between the parties, particularly those who belongs to the Scheduled Tribe community of the State of Meghalaya as far as jurisdiction is concerned, in view of the provision of Paragraphs 4 and 5 of the Sixth Schedule of the Constitution of India, lies with the respective District Council Courts as upheld by the High Court of Meghalaya through the learned bench led by Justice W. Diengdoh in the case of Shri Donbok Buam &amp; 3 Ors. Vs. Superintendent of Police &amp; Anr. and Shri. Donbok Buam Vs. Superintendent of Police &amp; Anr. ( Crl.Rev.P. No. 3 of 2021 with Crl.Rev.P. No. 4 of 2021).  A brief background of the case is that a complaint was filed against the Petitioners herein by one Smti Baiamonlang Tariang, which case after investigation culminated in filing of the charge sheet and registration of GR Case and in another complaint against the Petitioner No.1 u/s 506 IPC was instituted before the said Judicial Magistrate, Amlarem. The Petitioners have then preferred an application before the Court of the Deputy Commissioner (Judicial) at Jowai u/s 408 Cr.P.C r/w Rule 2 and 14 of the Khasi Syiemship (Administration of Justice) Rules, 1950, seeking for transfer of the above cases to the District Council Court on the ground that both parties are members of the tribal community of the State of Meghalaya and as such, the District Council Court has exclusive jurisdiction to try cases of this kind. Again, as stated above, the learned Deputy Commissioner (Judicial) vide impugned order had dismissed the respective applications on the ground that no power is vested on the Court of the Addl. Deputy Commissioner to transfer original cases from one criminal court within its jurisdiction to other criminal courts under the jurisdiction of the District Council Court. Mr. E. Nongbri, learned counsel for the Petitioner has submitted that the learned Deputy Commissioner (Judicial) has failed to comprehend the import of the constitutional provision of the Sixth Schedule to the Constitution of India wherein at paragraphs 4 and 5 of the same, it is clearly stipulated that trial of suits and cases between the parties all of whom belonged to Scheduled Tribe within the area of the District Council are to be tried by courts constituted by the said District Council. It was therefore submitted that this Court exercising its jurisdiction under Article 227 of the Constitution of India r/w Section 401 and 407 Cr.P.C may be pleased to set aside the impugned order dated 10.03.2021 and to direct the transfer of the GR case in question to the District Council Court for trial. Mr. T.L. Jyrwa, learned GA for Respondent No. 1 and Ms. P.S. Nongbri, learned counsel for Respondent No. 2 in response to the contention and submission made by the learned counsel for the Petitioner has fairly and candidly conceded that the proposition of law as advanced is correct and that the authorities cited by the learned counsel for the Petitioner are relevant to the subject matter and as such, no strong objection is raised for the impugned order to be set aside and quashed and consequently for transfer of the above GR cases to the District Council Court, Jowai. After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “In the light of the above, the impugned order dated 10.03.2021 cannot stand the scrutiny of law and procedure and are liable to be set aside and quashed. Consequently, the petitions in question are hereby allowed and the learned Additional Deputy Commissioner(Judicial), Jowai is hereby directed to transfer the cases of the Petitioner(s) to the Court of the Judge, District Council Court, Jowai who will then proceed to dispose of the same or endorse the cases to any Court of competent jurisdiction.”