State of Sikkim vs Tek Bahadur Tamang and Another

This criminal revision was registered suo motu by this Court to be satisfied as to the correctness, legality and propriety of the order dated 9-2-2000 delivered by Dr. S.W. Lepcha, the then Chief Judicial Magistrate, East and North in Criminal Case No. 83/99. By that order, the accused Tek Bahadur Tamang was charged u/s 380, IPC for committing theft of one country-made unlicenced gun. He was also charged u/s 27(1) of the Arms Act, 1959. The other accused, Dharma Bahadur Rai was charged under "Section 25(1), (b), (a) of the Arms Act." On 9-2-2000, when the impugned order was passed, five prosecution witnesses namely, Boudha Lama, Ram Maya Tamang, Kumar Rai, Deo Prakash Rai and Bachen Tamang were present. They pleaded guilty on that date. The learned Chief Judicial Magistrate convicted Tek Bahadur Tamang u/s 380, IPC and sentenced him to undergo simple imprisonment till the rising of the Court and a fine of Rs. 1,000/- and in case of default of payment of fine, to undergo further simple imprisonment for six months. He was also sentenced to pay a fine of Rs. 500/- in respect of the offence u/s 27(1) of the Arms Act, 1959 and in case of the failure of payment of the fine to undergo simple imprisonment for 3 months. He convicted Dharma Bahadur Rai u/s 25(1), (b), (a) of the Arms Act and sentenced to pay a fine of Rs. 500/- and in case of default of payment of fine to undergo simple imprisonment for 1 month.

The offence u/s 380, IPC is punishable with imprisonment of either, description for a term which may extend to seven years, and to fine. No cogent reason has been given by the learned Magistrate to justify undue leniency in the award of the sentence. The reason given is that both the accused were first offenders and villagers having no regular source of income. This was hardly a reason to justify leniency. Another reason given in respect of Tek Bahadur Tamang is that he is young boy of 22 years. But the most relevant factor, that the theft was allegedly committed of an unlicensed gun was not mentioned. Reasons given for the leniency in the award of sentence were virtually no reasons. The offence under Sub-sections (a) and (b) of Section 25 of the Arms Act, 1959 are punishable with imprisonment for a term which shall not be less than 3 years but which may extend to 7 years and also fine. Similarly, the offence u/s 27(1) is punishable with imprisonment for a term which shall not be less than 3 years but which may extend to 7 years and shall also with fine. The impugned order of the learned Chief Judicial Magistrate shows undue leniency in the award of sentence besides being contrary to the statutory provisions.

In the result, the revision is allowed. The order dated 9-2-2000 passed by the Chief Judicial Magistrate, East and North is set aside. The matter is remanded for fresh consideration by the learned trial Court. It shall be open to the learned trial Court to re-frame the charges after hearing learned counsel for the parties, to make the charges more specific. The parties shall appear before the learned Chief Judicial Magistrate, East and North on 12-6-2000.

A copy of this order be placed on the administrative side of the High Court.