@JUDGMENTTAG-ORDER
N.K. Jain, J.
This case has sluggished for nearly 9 years and the end is yet not in sight, as direction for retrial seems inevitable.
Appellants, 11 in number, were put to trial way back in January, 1992, and after a protracted trial for about 5 years, were convicted under Sections 148, 323/149 and 302/149 of IPC and sentenced to various punishments including imprisonment for life, vide judgment dated 23-8-1996, passed in Special Case No. 54/1996 (old Number 2/92), by the Court of Addl. Sessions Judge, Dhar, specific as ''Special Court'' u/s 14 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989, (short, ''the Act''). It is significant to note that except the appellant Nos. 4 to 6 (who are themselves member of Scheduled Tribes) others (non-Scheduled Tribes) were additionally charged and held guilty u/s 3(2)(v) of the Act, but no separate conviction or sentence for the said offence has been recorded against them by the Trial Court. It is a common ground that the Special Court below took cognizance of the said offences, both under the Indian Penal Code and the Act, directly as a Court of Original Jurisdiction, without the case being committed to it by a Magistrate.
Appellants have moved an application (I.A. No. 388/2000) seeking quashment of their conviction as also the trial proceedings preceding the said conviction, solely on the ground that the trial was without jurisdiction inasmuch as the specified Court of Sessions (Special Court below) did not acquire jurisdiction to take cognizance of any try the case in absence of its being committed by a Magistrate. Reliance was placed on a recent Supreme Court decision in
We have heard Shri C.L. Yadav, learned counsel for appellants and Shri G, Desai, Dy. Advocate General for respondent-State on the said application. While Shri Yadav strongly pressed the point raised in the application, Shri Desai made an unsuccessful attempt to convince us that it was a mere error of omission curable u/s 465 of the Code of Criminal Procedure (for short, ''the Code''). He further submitted that no such objection was taken at the trial by the appellants who are in no way prejudiced nor a failure of justice has in fact occasioned, by the said error or omission. The fall out of the order for re-trial would be that all the witnesses, both of the prosecution and the defence once examined in full should be called again, the whole chief-examination and cross-examination, re-examination, questioning of accused u/s 313 of the Code, hearing of arguments and preparation of judgment, have to be done once again, pointed out the counsel. He further maintained that the appellants who did not raise the objection at the trial cannot now be heard on that aspect for the first time in this appeal. Reliance has been placed on a Supreme Court decision in
We have given our anxious consideration to the submissions made by learned Dy. Advocate General but do not feel persuaded thereby notwithstanding the serious fall out of the order for re-trial which is inevitable in the facts and circumstances of the present case. The ratio in Gitaram (supra), we are afraid, is not available to the respondent in the instant case. In fact the decision in Gitaram is based on the ratio of Gangula Ashok.
The Act of 1989 was enacted to prevent commission of and deal with, the offences of atrocities committed against members of Scheduled Castes and Scheduled Tribes (by the persons not belonging to these categories). Section 14 of the Act provides for establishment of Special Courts to try offences under the Act. Under this provision the State Government are required to specify, with the concurrence of the Chief Justice of the High Court by Notification in Official Gazette, for each District a Court of Session to be Special Court to try offences under the Act. Accordingly, the State Government have, with the concurrence of the Chief Justice, from time to time, specified a Court of Session or a Court of Add). Sessions Judge, in every District to be Special Court for the purposes of the Act. Unfortunately the Act is silent as to the procedure to be followed by these Special Courts in taking cognizance and trial of the offences under the Act. To be more precise, the Act did not provide as to whether the Special Court constituted u/s 14, can take cognizance of the offence under the Act as a Court of Original Jurisdiction without the case being committed to it by a Magistrate. The controversy was set at rest for some time by a Division Bench decision of this Court in
"The procedure provided under the Code of Criminal Procedure, 1973 has to be followed, while trying the offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and consequently the Special Courts constituted under the Act has no jurisdiction to try the offences directly provided under the Act without the case being committed to it u/s 193 of the Code of Criminal Procedure, 1973".
However, Full Bench of this Court in a subsequent decision in Anand Swaroop (1996 MPLJ 141), overruled the decision in Meera Bai (supra) and held :
"Special Courts under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are not to function as Sessions Court, but as Courts'' or original jurisdiction''. Proceedings of Special Courts are governed by Section 190, Chapters XV, XVI (other than Section 209) as also Chapters XIX and XX of the Criminal Procedure Code as the case may be and such other provisions of the Code as arc not inconsistent with the scheme and provisions of the Act, reading "Special Courts" wherever the expression "Magistrate" occurs. Section 193 of the Code of Criminal Procedure does not apply to proceedings under the Act and committal orders are not required".
It is after the decision in Anand Swaroop (supra) that the Special Courts in the State have started taking cognizance of the cases under the Act, directly without these case being committed by the Magistrate, as required by Section 193 of the Code.
Now, family the controversy stands solved by the Supreme Court decision in Gangula Ashok (supra) and it is held :
"A Special Court under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Criminal Procedure Code. In other words, a complaint or a charge-sheet cannot straightway be laid before the Special Court under the Act."
It was further emphasised :
"The particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Sessions and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Criminal Procedure Court which contains a fascioulus of provisions for "Trial before a court of sessions", Section 193 of the Code has to be understood in the aforesaid backdrop. The Section imposes an interdict on all Courts of Session against taking cognizance of any offence as a Court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a Magistrate", as provided in the Code. Neither in the Code nor in the Act there is any provisions whatsoever, not even by implication, that the specified Court of Session (Special Court) can take cognizance of the offence under the Act as a Court of original jurisdiction without the case being committed to it by a magistrate. If that be so, there is no reason to think that the charge-sheet or a complaint can straightway be filed before such Special Court for offences under the Act. Neither Section 4 nor can Section 5 of the Code be brought in aid for supporting the view that the Court of Session specified under the Act can obviate the interdict contained in Section 193 of the Code as long as there is no provision in the Act empowering the Special Court to take cognizance of the offence as a Court of original jurisdiction".
The Apex Court has referred with approval the decision of this Court in Meera Bat (supra). It is true, Full Bench decision of this Court in Anand Swaroop (supra) was not brought to the notice of the Supreme Court but that hardly makes any difference and the said decision can no more hold ground after the decision of the Supreme Court taking contrary view. As held by this Court in M.Cr.C. No. 1521/2000, decided on 4-9-2000, the decision in Anand Swaroop stands impliedly overruled. In the said decision dated 4-9-2000, directions have been issued to the Courts below for returning the pending cases for being filed before the Magistrate and for trial afresh after committal. It was, however, observed that in the cases where decisions have already been rendered, it would be for the Appellate Court to make necessary directions. Needless to say that legal position cannot be different in respect of the cases which have already been decided by the Special Courts without there being any committal order by a Magistrate.
As emphasised by the Apex Court in Gangula Ashok, the Court of Sessions, specified as a Special Court under the Act, can take cognizance only if the case is committed to it by a Magistrate. Section 193 of the Code regulates the competence of the Court of Sessions and bars its jurisdiction in taking direct cognizance of the cases excepting in compliance therewith i.e., unless the case is committed to it by a Magistrate. Omission to commit a case, a pre-requisite for taking cognizance thereof by the Court of Session, is not a mere error, omission or irregularity which can be cured by taking recourse to Section 465 of the Code. This Section does not apply to a defect of jurisdiction (See :
Accordingly we allow I.A. No. 388/2000 as also the appeal and set-aside the impugned conviction and sentence passed against the appellants. The entire trial held by the Court below in the case shall also stand quashed. The Court below is directed to return the charge-sheet and the papers filed therewith to the prosecution who may re-submit the same to the Magistrate for further proceedings in accordance with law and keeping in view the directions contained in this Court''s order dated 4-9-2000 in M.Cr.C. No. 1521/2000.
Accused appellants No. 1 Bhooraji and No. 4 Mangu are in custody. They be released forthwith if not required in any other case. Other appellants are already on bail. All the appellants are directed to appear before the Committal Magistrate, Kukshi on 8-1-2001 who shall enlarge them on bail on their each furnishing personal bond of Rs. 20,000/- with one surety in the like amount, pending conclusion of the committal proceedings and the trial, if any.
