Sukhlal Jatav v. State of M. P. — 1993 DIGILAW 354 (MP)

ORDER K.M. Pandey, J. -- l. This revision has been preferred against the order of the Session Judge/Special Judge, designated under Act No. 33 of 1989, called as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (here in after referred as Act No. 33 of 1989). 2. The brief facts arc that the petitioner lodged a report to the police for taking action against the non-petitioners No.2 to 6. The police refused to accept this report with the result that the petitioner sent the report to the high officials including the Superintendent of Police, Gwalior, but all in vain. Thereafter, the petitioner riled a private complaint in the Court of Session Judge/Special Judge, Gwalior on 16.4.1992. The offence were exclusively triable by the Sessions Judge, designated as Special Judge under the AetNo.33 of 1989. The complaint was for offences punishable under section 3(10), (15) and under section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, under section 4(2) of Civil Rights Protection Act, 1965 and under section 341 and 294 of the Indian Penal Code against the non-petitioners No.2 to 6, filed with affidavit and two documents in its support. Though, the learned Special Judge took the cognizance of the offences as the offences were exclusively triable by that Court as mentioned in the Atrocities Act itself and examined the complainant u/s. 200 Cr. P.C. and further examined the complainant's witnesses u/s. 202 Cr. P.C. and the case was adjourned from time to time for orders and for the registration of the case u/s 203 or204 Cr.P.C. 3. Meanwhile, the then Sessions Judge/Special Judge (Shri Karambelkar) was transferred and Smt. Sarojini Saxena, the present Sessions Judge and Special, Judge took charge. The point of jurisdiction was raised before the present Sessions Judge/Special Judge. The learned Special Judge then passed the impugned order whereby the proceedings drawn by the then Special Judge (Shri Karambelkar) were quashed and the learned Court further held that her predecessor Judge, who had recorded the statements u/Ss. 200 and 202 Cr.P.C. was under impression that this Court is the only Court to take cognizance of the offences punishable under various sections of the Act and with this reason only he examined the complainant and the witnesses. 200 and 202 Cr.P.C. was under impression that this Court is the only Court to take cognizance of the offences punishable under various sections of the Act and with this reason only he examined the complainant and the witnesses. The learned Special Judge vide order dated 5.6.1992 quashed the proceedings and directed the petitioner to appear bc10re the Chief Judicial Magistrate, Gwalior and further directed the Child Judicial Magistrate, Gwalior to take cognizance or the alleged offences un the basis of the complaint filed by the petitioner and complete the proceedings in respect of the commitment of the case. Aggrieved by the aforesaid order, the present revision has been preferred. 4. The only point for consideration in this case is :- Whether the offence covered in the Schedules Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were cognizable by the Special Judge or the general law prescribed under the Code of Criminal Procedure, for commitment of the case, triable by the Sessions Judge, will apply? 5. This special legislation has been enacted to prevent and check various offences, indignities, humiliations and harassment on Scheduled Castes and Scheduled Tribes, as the existing provisions of law like the protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate. Of late, there has been an increase of certain atrocities, like making them to eat inedible substances like human excreta and attacks on and mass killing of people, rape of women of these sections This enactment provides for extra punishment for the crime of atrocity on Scheduled Castes and Scheduled Tribes as defined under the Act by the Special Courts by following the speedy special procedure under the Act. 6. Act No.33 of 1989 is a special Act and contains both procedural and substantive part. Chapter IV of the Act, referred above, deals with the procedural part. Section 14 speaks about the speedy trial and the constitution of Special Courts to deal with the offence under this Act. It reads as below :- " 14. 6. Act No.33 of 1989 is a special Act and contains both procedural and substantive part. Chapter IV of the Act, referred above, deals with the procedural part. Section 14 speaks about the speedy trial and the constitution of Special Courts to deal with the offence under this Act. It reads as below :- " 14. Special Court -- For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the notification in the Official Gazette, specify for each district a Court of Session to be a special Court to try the offence under this Act." It, therefore, prescribed the way in which the Special Courts are to be constituted and the purpose will be to try the offence under this Act speedily. 7. Section 18 of Act No.33 of 1989 says that :- "18. Section 438 of the Code not to apply to person committing an offence under the Act." It may be pointed out that section 438 Cr.P.C. deals with the anticipatory bail Likewise, by virtue of section 19 of this Act section 360 of the Cr.P.C. or the provisions of the Probation of Offenders Act shall not apply to persons guilty of an offence under the Act. 8. Section 20 deals with the overriding provisions of this Act. It reads as below :- "20. Act to override other laws -- Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having correct by virtue of any such law." Thus, even if there is anything• inconsistent with the provisions of this Act, then the provisions of this Act has an overriding effect and it shall apply. Thus, the provisions of Indian Penal Code, Code of Criminal Procedure and Evidence Act, so far as they arc inconsistent with the provisions of this Act, shall not apply to the cases under this Act. 9. The impugned order, under attack in this revision, suffers from this defect that the overriding affect of this Act has not been understood properly and has not been applied. The learned Sessions Judge has relied heavily on the provisions of sections 173, 193, 200 and 209 of the Code of Criminal Procedure. 9. The impugned order, under attack in this revision, suffers from this defect that the overriding affect of this Act has not been understood properly and has not been applied. The learned Sessions Judge has relied heavily on the provisions of sections 173, 193, 200 and 209 of the Code of Criminal Procedure. At page 4, para 6 of her order, the learned Judge has said :- "To my mind, the argument has no force. Under section 200 of the Code of Criminal Procedure a complaint is presented before a Magistrate, who on taking cognizance of an offence un complaint shall examine upon oath the complainant and the witnesses present, if any. If the Magistrate is not competent to take cognizance of the offence, he shall return the complaint for presentation to the proper Court, if the complaint is in writing and if it is not in writing, the Magistrate shall direct the complainant to the proper Court. Under section 202 of the Code of Criminal Procedure, the Magistrate can postpone issue of process against the accused under the circumstances enumerated therein. If there is no sufficient ground for proceeding against the accused, the Magistrate is empowered to dismiss the complaint under Sec. 203 Cr. P.C. But, if he is of the opinion that there is sufficient ground for proceeding, he shall issue process against the accused persons. if in such a complaint-case, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay supply to the accused copies of the statements recorded under section 200 or 202, copies of statement, if any, recorded under section 161 or 164 and of any documents produced before the Magistrate. There upon, under section 209 Cr. P. C. Code the Magistrate shall commit the case to the Court of Session following the procedure laid down therein. " She has also quoted section 192 Cr. P.C.. to find support from the fact that the C.J.M., under the Code may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. Section 193 of the Cr. P.C. has also been relied upon to show how the cognizance of offence are taken by the Court of Session. It reads as below :- "193. Section 193 of the Cr. P.C. has also been relied upon to show how the cognizance of offence are taken by the Court of Session. It reads as below :- "193. Cognizance of offence by Courts of Session -- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall lake cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." 10. The learned Sessions Judge, who is admittedly the notified special Judge under the Act, has again felt difficulty on account of the lack of procedure given in the notification as to how the Special Court shall try the offence under the said Act. Para 10 of the impugned order of the Sessions Judge deserves notice. I may quote it as under :- "From the provisions of the aforesaid sections IX, 19 and 20 of the Ad, it is evident that in this Act, the provisions of Code of Criminal Procedure (except sections 438 and 360 are nut made inapplicable for the trial of the offences under the Act." I feel that the learned Sessions Judge has allowed herself to fall in error at this stage. It is common knowledge that law is never negative. It is always positive. Whenever, any Act speaks of the application of certain provisions of another Act then it is specifically mentioned, but no negative mention is made in the Statute. If certain provisions of any Act are made applicable then it is specifically mentioned. If there is no mention regarding applicability of certain provisions of any Act then by no stretch of imagination, it can be said that simply because the provisions of any particular Act has not been made inapplicable, the provisions of that Act become applicable. The approach of the Judge is, therefore, erroneous. 11. The learned Judge has also relied un the Criminal Law Amendment Act, 1952. Therein also, Special Judge are appointed under section 6 of the Act to try the offence under sections 161 to 165-A, I.P.C and under section 5 of the Prevention of Corruption Act. The approach of the Judge is, therefore, erroneous. 11. The learned Judge has also relied un the Criminal Law Amendment Act, 1952. Therein also, Special Judge are appointed under section 6 of the Act to try the offence under sections 161 to 165-A, I.P.C and under section 5 of the Prevention of Corruption Act. Section 7 of the said Act lays down that notwithstanding anything contained in the Code of Criminal Procedure or in any other law the offences specified in sub- section (1) of section 6 shall be triable by special Judge only. Its section 8 clearly provides that a special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused-persons, shall follow the procedure prescribed by the Code of Criminal Procedure, for the trial of warrant-case by Magistrates. Assistance has been taken from the M.P. Daketi or Vyapaharan Prabhavit Kshetra Adhiniyam, 1981 and also from Narcotic Drugs and Psychotropic Substance Act, 1985 wherein special Courts have been constituted to try offence under that Act. Section 36-A(i)(b) of that Act provides that the special Court may, upon a perusal of the police report of the fade constituting an offence under this Act or upon a complaint made by an officer of the Central Government or State Govt. authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. In the M.P. Dakaity and Vyapaharan Kshetra Adhiniyam, 1981 there is a provision that a Special Court shall, in trial of specified offences, follow the procedure provided by the Code, for trial of Session cases. 12. Likewise, the learned Judges has derived strength from the Terrorists Effected Areas (Special Courts) Act, 1984. Its section 10 provides that a Special Court may take cognizance of any scheduled offence, without the accused being committed to it for trial, upon receiving a complaint of fact which constitute such offence or upon the police report of such fact. 13. 12. Likewise, the learned Judges has derived strength from the Terrorists Effected Areas (Special Courts) Act, 1984. Its section 10 provides that a Special Court may take cognizance of any scheduled offence, without the accused being committed to it for trial, upon receiving a complaint of fact which constitute such offence or upon the police report of such fact. 13. In all the Acts, referred above, a provision is made that a special Court is competent to take cognizance of the sail offences on a private complaint or on a police report about the commission of the said offences without the case being committed to the present Act No.33 of 1989 there is no procedure laid down for the trial of the offence alleged to have been committed under the provisions of this Act and, therefore, the learned Judge has sail that except the provisions of section 438 and 360 Cr. P.C., all other provisions of the Cr.P.C., 1973 are applicable when a private complaint or a police report is filed with regard to the offence committed under this Act. The learned Sessions Judge has, therefore, held that the procedure prescribed under Chapter XV and XVI of the Code of Criminal Procedure should have been followed and thereafter the case should have been committed to the Sessions Judge under section 209 of the Code of Criminal Procedure. 14. The whole difficulty seems to be experienced on account of the fact that the Special Court has not been given any special power to take cognizance or the cases under the Act specifically. I have pondered over the matter and feel that the difficulty seems to be for lake of proper appreciation of certain in provisions of Act. No.33 of 1989. Section 14 of the Act says ;- "14. Special Court -- For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to his a Special Court to try the offence under this Act." It is a common knowledge that Courts of lowest jurisdiction are asked to take cognizance or exercise jurisdiction in civil and criminal cases. Section 14 provides for the creation of Special Courts to try the offence under this Act, Here, the Legislature has conferred a jurisdiction on the Special Courts to try the offences under this Act. 15. In this connection, section 20 of the Act is also very important and clinches the matter. This Act has made a special provision for the applicability of the provisions of this Act notwithstanding the fact that any other Act contains an inconsistent provision. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith, contained in any other law for the time being in force, or any custom or usage or any instrument having effect by virtue of such law. The Code of Criminal Procedure, thus, contained the provisions regarding taking cognizance and the way in which cases are to be committed to the Court of Session. It is a sheer co-incidence that a Sessions Judge in different districts have been conferred the powers of special Court. When there is no provision in any other Act on any point then such provision becomes inconsistent with this Act for want of any provision and the provisions of this Special Act shall apply and the provision of any other Act having special provisions not provided in this Act will not be applicable for the purposes of this Act. The provisions of the Code of Criminal Procedure, as a whole' will not become applicable simply because they will become inconsistent with the provisions of this Act. The simple logic is that the inconsistent provisions of any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law would give way to the provisions made under this Act. Thus, the provisions of Indian Penal Code, Code of Criminal Procedure and Evidence Act so far as they are inconsistent with the provisions of this Act, shall not apply to the cases under this Act. 16. If the Legislature has not made any provision for the commitment of the cases under this Act to the Special Court then this in itself will not effect the jurisdiction of the Special Courts in taking cognizance of the cases under this Act. 16. If the Legislature has not made any provision for the commitment of the cases under this Act to the Special Court then this in itself will not effect the jurisdiction of the Special Courts in taking cognizance of the cases under this Act. I am, therefore, of the opinion that the provisions of the Code of Criminal Procedure regarding commitment of cases to the Special Court cannot be lifted from the said Code and made applicable in this Act simply because this Act has• made no specific provision for commitment of such cases to the Special Court. The Special Court becomes the Court of original jurisdiction in this Act. In this connection, the word "try" used in Section 14 of the Act No.33 of 1989 is of significance and suggests that the Special Court, not only got the power to try the offence but it has also got the powers to make every kind of inquiry as a Criminal Court of original jurisdiction. 17. I am supported in my view by a D.S. case of Kerala High Court reported in 1993 Cr. L.J., Page 760. The Kerala High Court has held :- "Where a special Court specified in S. 14 receives a final report disclosing offences punishable under S. 3 of the Act as well as offence under S.376 of the Penal Code, the accused can be tried for both in the same proceedings. For that no order of commitment by Magistrate for offences punishable under S. 376 Penal Code is called for." It was further held in the said case :- "The power as a Special Court is conferred on a Court of Session which is one in the hierarchy of Courts envisaged by the Criminal P.C. when such a Court is seized of the dispute in so far as actual trial is concerned, it should be governed by the ordinary rules of procedure applicable to it as provided in the Code. The procedure for trial to be followed can only be that prescribed in the Code where so special provision to that defect in made in the Act. In other words, so long as the Act does not make provision for the procedure to be followed by the special Court, which is a Court of Session, its procedure regarding trial should be governed by the provisions contained in the Code. In other words, so long as the Act does not make provision for the procedure to be followed by the special Court, which is a Court of Session, its procedure regarding trial should be governed by the provisions contained in the Code. The special Court is thus to take cognizance of the offence under the Act and proceed with the trial as provided under the Code. Section 193 of the Code will not apply to the Special Court." 18. Reliance was placed by the Kerala High Court on 1984 Cr.LJ., 647. The Honourable Supreme Court held :- "A private complaint in respect of offences committed by public servants can be entertained by the Special Judge as enumerated in S.5(1) (a) and (b) of the 1952 Act. Cognizance of the same by Special Judge is legal." It was further held that the Court of a Special Judge is a Court of original jurisdiction. It has to functiol1 as a Court of original criminal jurisdiction not being bound by the terminological status, description of Magistrate or a Court of Session. Under the Code it will enjoy all powers as any Court of original criminal jurisdiction except those specifically excluded. The Kerala High Court further relied on 1957 Cr.LJ. 567. 19. In view of what has been discussed above, I am of the view that – (i) The Special Court specified in section 14 of Act No.33 of 1989 becomes a Court of original jurisdiction, in terms of the provisions contained in the Code; (ii) The Special Court is to take cognizance of the offence under the Act and proceed with the trial as provided under the Code. Section 193 of the Code of Criminal Procedure will not apply to the Special Court; and (iii) The Special Court is not required to wait till the case is committed to it under the Code and need not wait for the compliance of section 193 of the Code of Criminal Procedure for assuming jurisdiction. The impugned order passed by the Sessions Judge/Special Judge, Gwalior dated 5.6.1992 is, therefore, set aside and the case is sent back to her for further proceedings according to law.