KULENDRA KUMAR DEY Vs. UNION TERRITORY OF ARUNACHAL PRADESHTL

JUDGEMENT

(1.) ARUNACHAL Pradesh was a part of the 'tribal areas' of Assam for whose administration special provisions were made in the Sixth Schedule to the Constitution. The enactment of the Schedule has a history of its own which can be traced to early 19th century. The backwardness of the region was the principal reason for having a special machinery for administering the areas, first known as backward tracts, subsequently designated as excluded and partially excluded areas. We may not traverse the history for the case at hand. Suffice it to say that in so far as administration of justice is concerned, special rules were made keeping in view the peculiar and particular situation of the tracts. The whole idea was to have a simple administration which would be dehors of the technicalities of, say Codes of Criminal and Civil Procedure, Arunachal Pradesh was not the only region to have such a system. Reference to the table to para 20 of the VIth Schedule would show that the tribal areas included various hill districts of the east while State of Assam. It is because of this that even under the new Code of Criminal Procedure the provisions of this enactment except those relating in Chapters VIII. X and Xl were not made applicable to the tribal areas. A power was however conferred to apply any of the provisions of the Code as may be specified in the notification to be issued in this regard.

(2.) THE question with which we are seized is whether Section 438 of the Code containing provision for anticipatory bail, as it is generally called, would apply to the territory of Arunachal Pradesh. It may be stated that by virtue of the provisions in Section 32 of the Assam Frontier (Administration of Justice) Regulation, 1945, for short the Regulation, the Courts are to be guided 'in regard to procedure by the principles of the Cri. P.C. It would be apposite to state that in similar rules governing other parts of the tribal area, the phraseology used is that courts would be guided by the spirit of the Criminal P.C. What is meant by spirit came to be considered in State of Nagaland v. Ratan Singh : 1967CriLJ265 . It was stated in paragraphs 29 and 30 of this judgment that the desire to make the spirit alone applicable would imply that the technical rules of the Code are not to prevail over the substance of the matter, because removal of the technicalities leads to the advancement of the cause of justice in these areas which are inhabited by simple folks.

(3.) SRI Bhattacharjee, the learned Counsel appearing for the petitioner, contends that acceptance of the aforesaid submission would amount to leaving the accused persons arrested or to be arrested at the absolute mercy of the authorities inasmuch as the Regulation does not contemplate of release on bail of an arrested person. Indeed the Regulation has not even conferred power of arrest. Realising this position perhaps the Government of Arunachal Pradesh extended the provisions of Chapters IV, V and XII of the Code by notification dt. 5 -1 -79. It. is apparent that power of arrest would be absolutely arbitrary if no provisions were to be made for release of the person on bail. Article 21 would also be violated because it would be a question of depriving personal liberty without laying down a procedure which would be just, fair and reasonable.