Shri Bremingstar Mylliem vs . State Of Meghalaya
2022 Latest Caselaw 475 Meg

Serial No.04
Regular List
                        HIGH COURT OF MEGHALAYA
                               AT SHILLONG

       Crl.A.No.23/2019
                                                     Date of order: 23.08.2022
       Shri Bremingstar Mylliem          Vs.              State of Meghalaya
       Coram:
              Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
              Hon'ble Mr. Justice W. Diengdoh, Judge
       Appearance:
       For the Appellant              : Mr. A. Khan, Legal Aid Counsel
       For the Respondent             : Mr. K. Khan, PP with

Mr. R. Gurung, GA

i) Whether approved for reporting in Yes Law journals etc.:

ii) Whether approved for publication in press: Yes/No

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral) Some alarming facts have come to light in course of the present

criminal appeal and the matter requires the urgent attention of all

concerned.

2. The appellant, who is represented by the Legal Aid Counsel, has

been convicted under Section 302 of the Penal Code for triple murder but

sentenced only to 14 years' imprisonment. If the conviction were to be

upheld, the sentence has to be enhanced in accordance with law since the

punishment in this case could only have been death sentence or life

imprisonment.

3. It, however, appears, pursuant to considerable industry on the part

of Counsel representing the appellant, that the appellant may be of

unsound mind and it should have occurred to any reasonable person that

the appellant may have been of unsound mind since he was accused of

committing triple murder of his parents and a sibling.

4. Indeed, upon learned Public Prosecutor being requested to look

into the matter and assist the Court, several documents which are on

record have been referred to which reveal that the trial could not have

taken place as there was a firm medical opinion that the appellant herein

was unfit to stand trial and required treatment. Despite such medical

status report of March 7, 2012 issued by the Senior Medical and Health

Officer, Psychiatrist, Meghalaya Institute of Mental Health and

Neurological Sciences, Shillong being forwarded to the trial court by the

Superintendent of District Jail, Shillong under cover of a letter dated

March 14, 2012, the trial court proceeded to record the statement of the

appellant without referring to his mental condition or the medical opinion

forwarded to the court.

5. The first information report in this case was lodged on August 2,

2011 and the appellant was arrested on August 3, 2011. Pursuant to the

initial observation in course of the appellant's medical examination, the

appellant was admitted in MIMHANS on September 20, 2011 and his

medical status report of March 7, 2012, referred to above, clearly

indicated that the appellant was psychotic, he had no insight of his own

illness and was unfit to stand trial as he required long-term treatment to

prevent further deterioration.

6. Even in the usual course, the combined impugned order of

conviction and sentence of September 15, 2014 cannot be sustained as it

does not resemble the outcome of any meaningful or reasonable process

of adjudication or indicate the remotest application of mind.

7. The impugned order has been passed by a Judge in a District

Council Court authorised by the Governor to take up heinous offences

involving harsh punishment as long as the matter was between a tribal

and another. Though the Sixth Schedule to the Constitution dispenses

with the application of the letter of the Code of Criminal Procedure, yet

fundamental rules of justice need to be followed, particularly in course of

a criminal trial and high authorities instruct that even if a confession is

made by an accused of sound mind, the conviction should not be founded

simply on the admission; but should be seen as corroborative material if

the evidence otherwise indicates the high likelihood of the commission

of the offence by the accused.

8. In this case, despite the trial court being informed of the mental

condition of the appellant herein, the trial court proceeded to pass the

order of conviction spread over a little in excess of one page where the

principal paragraphs that stand out are the following:

"Ld Prosecution ... argued that on the basis of the admission of the accused person of the offence committed by him, no further evidence is required to be taken up and hence, prayed the court to convict the accused person into life imprisonment. "(Name withheld), legal aid counsel who is also present in court argued that she has got no objection for conviction of the accused person. However, she prayed the court that the quantum of punishment should be reduced to 12 years."

9. Without reference to the applicable law and the relevant provision

of the Penal Code, the trial court proceeded on its ipse dixit to convict the

appellant and sentence him to 14 years' simple imprisonment, including

the period already spent in detention.

10. As rightly pointed out on behalf of the State by learned Public

Prosecutor that Section 329 of the Code of Criminal Procedure provides

a mechanism in case of a person of unsound mind being tried before any

court. The detailed procedure requires the court to assess, upon obtaining

expert medical report, the mental condition of the accused and to not

proceed with the trial till such time that the accused is found fit to stand

trial so as to be able to make out his defence.

11. Merely because the Sixth Schedule to the Constitution does not

require the letter of the Code to be adhered to does not imply that common

sense and all fundamental cannons of justice have to be thrown to the

wind by the District Council Court, surprisingly authorised to deal with

such a serious matter when it is obvious that the Judge concerned lacks

basic sense of justice and is completely bereft of domain knowledge on

the subject.

12. The State would do well to consider the quality and ability of

Judges manning District Council Courts before conferring authority on

them to deal with serious matters.

13. Since the trial in this case could not have been undertaken in the

wake of the medical report of March 7, 2012 and the District Council

Court conducting the trial completely overlooked or deliberately ignored

the same, the entire process is set at naught and the judgment of

conviction and the consequent sentence are set aside.

14. The matter is remanded to the trial court to be dealt with in

accordance with law, particularly keeping in mind the requirements of

Section 329 of the Code. The trial court will not resume the trial in

accordance with Section 331 of the Code or the spirit thereof, till such

time an expert opinion is rendered in accordance with law as to the

appellant herein being fit to stand trial. In any event, even if the appellant

is found fit to stand trial and repeats the confession or admission made

earlier, the trial court must look into the evidence and use the confession

as another piece of evidence and not the sole material to convict the

appellant. Further, the trial court must be mindful of the statutory

mandate as to sentencing and not arbitrarily invent a form of punishment

for a particular offence which is unknown to law.

15. Let a copy of this judgment be reached to the Law Secretary of

the State for future steps to be taken cautiously before conferring

authority on District Council Courts or Judges ill-equipped to administer

justice in accordance with the basic tenets of law.

16. In view of the spirit of Section 330 of the Code, the appellant is

entitled to be released and admitted for treatment at a proper medical

facility run by the State pending further orders of the trial court.

17. Crl.A.No.23 of 2019 is disposed of.

18. The other aspect that this matter brings to the fore is the poor legal

assistance rendered to those who may not be able to afford lawyers' fees.

It is the duty of the State to ensure that an accused gets adequate legal

assistance to set up his defence even if the accused is not able to afford a

lawyer to represent him. Thanks to the Legal Services Authorities Act,

1987 and the apparatus set up thereunder, there is now a system of legal

aid counsel being provided at the High Courts and also at the district court

level. However, busy lawyers are not inclined to do pro bono work and

fees have shot through the roof as the once noble profession is now a

business that cares little for morals and scruples as long as the moolah

rolls in. Thus, inexperienced and briefless Advocates queue up to be

appointed as legal aid counsel to make the little by way of fees that come

with such appointment. Since the pay may not be attractive or even

adequate, matters are often treated in a cavalier manner only to log the

fees without rendering any assistance or quality assistance to the needy

litigant.

19. The submission made before the trial court by legal aid counsel

representing the accused and as set out in the extract quoted above was

alarming. There is no room to plead for reduction of a sentence for murder

- here, triple murder, no less - since the only possible punishments are

the death penalty or life imprisonment. Yet an absurd prayer was made.

Further, legal aid counsel ought to have required the full evidence to be

looked into instead of recklessly condemning the de facto client to

conviction without caring to look into the papers that spelt out loud and

clear that the accused was unfit to stand for trial.

20. The State Legal Services Authority should take note of this and

ensure that appointments as legal aid counsel are not made on extraneous

considerations or merely because an application has been made therefor.

Till such time that the legal education system is strengthened and

burgeoning cattle-shed law colleges are arrested from unleashing

completely untrained personnel to be qualified to obtain license for

practice, even as the statutory watchdog plays the fiddle, a strict vigil

must be maintained on the appointment of legal aid counsel so that the

colossal disservice that was done to the appellant in this case, instead of

rendering any assistance, is not repeated. The only silver lining here is

the quality of assistance rendered to the appellant by legal aid counsel in

the High Court.

21. Let a copy of this judgment be also forwarded to the State Legal

Services Authority to guard against reckless appointments and to start a

process of appraising the quality of assistance rendered before the next

appointment is handed out to an applicant.

        (W. Diengdoh)                    (Sanjib Banerjee)
            Judge                          Chief Justice

Meghalaya
23.08.2022
"Lam DR-PS"