CHEWANG NAMGAY Vs. LAKO TSHORING
LAWS(SIK)-1983-4-1
HIGH COURT OF SIKKIM
Decided on April 14,1983

CHEWANG NAMGAY Appellant
VERSUS
LAKO TSHORING Respondents


Referred Judgements :-

SANGRAN SINGH VS. ELECTION TRIBUNI KOTAH [REFERRED TO]
GOPAL DAS SINDHI VS. STATE OF ASSAM [REFERRED TO]
STATE OF ORISSA VS. BINAPAIRI DEI [REFERRED TO]
RAM CHANDER VS. STATE OF HARYANA [REFERRED TO]
O P SINGHI VS. STATE OF SIKKIM [REFERRED TO]
SAMBHUNATH V. STATE [REFERRED TO]
STATE OF SIKKIM VS. PEMBA SHERPA [REFERRED TO]


JUDGEMENT

A.M.Bhattacharjee, Acg. C. J. - (1.)It was observed by this court in Sambhunath v. State, that Law is good but justice is better, but in order to promote, secure and administer justice, for which alone the Courts exist, we may stretch the law, if we can, but cannot break the Jaw. The oath we take under the Constitution being- to uphold the Constitution and the laws, our journey towards justice must follow the route laid down by the law. We may try to make it shorter, if we can; but cannot resort to a total detour or deviation. Justice is, no doubt, our sole goal, but we must reach it through the legal road.
(2.)I have made these observations because it has been urged in support of the impugned order that the decision arrived at by the learned Magistrate is a just one in the facts and circumstances of the case, even though the procedure was not in accordance with the law. I am, however, afraid that even assuming, though obviously not deciding, that the decision was just, the procedure adopted was not only not in accordance with the law but was in flagrant contravention of all known rules of procedure, civil or criminal and in our Jurisprudence, justice, though our cherished goal, must be administered in accordance with and not in violation of the law. Though some times overstated, the old adage that justice must not only be done, but must appear and be shown to have been done, is one of the foundations of our system of administration of justice.
(3.)In the case at hand a written complaint was instituted by the opposite party before the District Magistrate, Gyalshing, against the petitioner alleging that the petitioner committed mischief by damaging the standing crops of bulk-wheat of the opposite party by unauthorized using the field of the opposite party as a thorough fare and by removing the stones of the water channels in the field and that the bulls of the petitioner also damaged the standing crops of the complainant. There was thus a clear complaint to a Magistrate with a view to his taking action under Code of Criminal Procedure on the allegation that the petitioner committed the offence of mischief. It appears from the order sheet that the District Magistrate called for an enquiry report from the Police and on receipt thereof transferred the case to the Judicial Magistrate obviously, though not stated expressly, for trial and disposal according to law. It is difficult to understand as to whether it was a pre-cognizance administrative order of transfer, which the District Magistrate could do, as pointed out by this Court in O.P. Singhi v. State, relying on the Supreme decision Court in Gopal Doss v. State of Assam, or was a post-cognizance judicial order of transfer under section 192 of the Code. Even about the enquiry by the police it is not clear as to whether it was done in accordance with any pre-cognizance order of the District Magistrate under section 156 or any post-cognizance order under section 202. It appears that neither the learned District Magistrate, who transferred the case, nor the learned Judicial Magistrate, to whom the case was transferred, was clear in their minds at any point of time as to the Jurisdiction exercised and the procedure followed by them. It is difficult to understand, and I am afraid that I would have to go on repeating this difficulty throughout this judgment, as to why and how a complaint disclosing clearly the commission of offence was registered by the District Magistrate as a Criminal Miscellaneous case and it is much more difficult to understand as to how and why the Judicial Magistrate, on receipt of the case on transfer, registered it as a Civil Miscellaneous case. And the course adopted thereafter the Judicial Magistrate is really startling for he almost assumed the role of an arbitrator, notwithstanding the absence of any arbitral reference to him by the parties or by any Court. He straightway summoned the parties and (to use his own language) heard them in brief to ascertain the nature of the dispute, referred to the reports by the Police and the Panchayat and, presumably finding a case for consideration, issued summons to the witnesses mentioned in the complaint. He then examined those witnesses and also the complainant, recorded their statements in separate Sheets and fixed the case for order and finally passed the impugned order directing the petitioner to pay to the complainant compensation of 6 lathis of buck-wheat and disposed of the case. In making the impugned order the learned Magistrate heard the parties, (to use his own words, heard them in brief), found support for, the complainants case from the various statements made by the different witnesses on his behalf, relied heavily on the reports submitted by the Police and the Panchayat, found a prima facie case that the crop of the petitioner had been destroyed which, however, according to him, sounds a civil caseT and for which, according to him, the complaint ought to bring the civil suit to that effect, and referred to and relied on the alleged admission of the petitioner as to the commission of damage. The record of the case, however, nowhere shows that the petitioner, against whom the impugned order was passed, was examined by the Magistrate at any stage and that his statements were recorded where from any such admission referred to and relied on by the Magistrate, could be extracted. The records of the statements of the four witnesses and the complainant show that the petitioner cross-examined only one witness and declined to cross-examine another, but the records do not show that the petitioner was given any opportunity to cross-examine the other two witnesses and also the complainant himself. It is again difficult to understand as to bow the Judicial Magistrate could treat the reports by the Police and the Panchayat as legal evidence; but assuming arguendo that those reports could be transformed into legal evidence, the records do not show how and at what stage the Judicial Magistrate brought them on record and that, the petitioner, against whom those reports were used, was given any opportunity to test their reliability at any stage If the petitioner was given no opportunity to cross-examine some of the witnesses and also the complainant, if the alleged admission of the petitioner was relied on without anything in the record, to show that the petitioner was examined at all, if the reports of the Police and the Panchayat were collected and utilized behind the back of the petitioner, then the Magistrate obviously acted in flagrant violation of not only of our laws of procedure civil or criminal but of all principles of justice and fair-play. Now that the Supreme Court has ruled times without number see for example State of Orissa v. Binapani Dei, that even purely administrative order involving civil consequences must be made consistently with the rules of natural justice. then a fortiori, a judicial order made in violation thereof must fail, unless the provisions of law governing the matter rule out the application of those principles expressly or by irresistible implication. As our laws of procedure governing the case at hand, far from outweighing or overthrowing those principles, have actually embodied them in the relevant provisions, as pointed out by the Supreme Court in Sangram Singh v. Election Tribuna, the impugned order must & cannot but be set aside for, violating those laws and principles. Even assuming, its urged by the learned Public Prosecutor, that the Impugned order directing the payment of compensation was not otherwise unjust or unfair, in law, the end, even if just, would not justify the illegal means to achieve that end.


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