STATE OF H. P. v. BALAK RAM — 1997 DIGILAW 380 (HP)

JUDGMENT A.L VAIDYA, J.—Both these appeals are being taken up together as an important common question of law is involved in them. However, so far as the merit is concerned, both the appeals have distinct facts. 2. In Criminal Appeal No. 293 of 1993, the accused-respondents were prosecuted under Section 143/458 IPC read with Sections 3 (i) & (xi) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be called as "the Atrocities Act") and after trial, they were acquitted by the Special Court (Sessions Judge), Mandi. 3. In Criminal Appeal No. 380 of 1995 the accused-respondent was prosecuted under Section 3(1) of the Atrocities Act and, after trial, was acquitted by the Special Court (Sessions Judge), Una. 4. The State of Himachal Pradesh has come up in appeal against the acquittal order in both the cases. 5. Learned Single Judge of this Court in Criminal Reference No. 1 of 1996, Dya Singh and another v. Narad and 5 others, decided on October 29, 1996, held that the Special Court was not legally empowered to take cognizance of the offence under the Atrocities Act and it could be so done on the accused having been committed to it in accordance with Section 209 of the Code of Criminal Procedure. The learned Single Judge thus came to the conclusion that on the basis of the above proposition of law, the Special Court, Mandi had erred in taking cognizance of the offence directly without the accused having been committed to it under Section 209 of the Code of Criminal Procedure and, as such, the order passed by it on 15-12-1992 was bad on the fact of it. On this date, that is, 15-12-1992, the Special Court came to the conclusion that no case under Section 3(2)(iii) of the Atrocities Act was made out and, therefore, the Presiding Officer ordered the case to be sent to the Court of learned Chief Judicial Magistrate, Mandi, for its disposal in Accordance with law, either by himself or by a Judicial Magistrate having jurisdiction over the matter. 6. The State has assailed the acquittal order passed in the aforesaid two cases by preferring two separate appeals, referred to above. Before these appeals could be taken up on merit, the aforesaid judgment passed by the learned Single Judge has come in the way of disposal of these appeals. 6. The State has assailed the acquittal order passed in the aforesaid two cases by preferring two separate appeals, referred to above. Before these appeals could be taken up on merit, the aforesaid judgment passed by the learned Single Judge has come in the way of disposal of these appeals. According to the learned Deputy Advocate-General, Shri M.S. Guleria, in case the aforesaid proposition disposed of by the learned Single Judge is accepted, both the appeals have to be sent back for committal proceedings as the learned Special Court without commitment could not take cognizance of the offence under the Atrocities Act. However, learned Deputy Advocate-General further submitted that the proposition of law laid down by the learned Single Judge does not appear to be a correct and valid proposition. It is with this background that both these appeals have been taken up by the Division Bench for hearing learned counsel for the parties with respect to the aforesaid proposition. 7. Learned counsel for the parties have been heard in detail and they have advanced the arguments in a most effective and useful manner. 8. The relevant portions of the judgment of the learned Single Judge run as under: "At the very out-set, it may be stated that in dealing with the present case the Courts below have shown their lack of knowledge with regard to the necessary legal provisions. As stated above, initially a final report under Section 173, Code of Criminal Procedure was presented to the Special Court, Mandi for the trial of respondents 1 to 5 for the offences under Sections 147 and 149, Indian Penal Code and under Section 3 (2) (iii) of the Act. Section 14 of the Act provides for the establishment of Special Courts for the trial of offences under the Act. It reads : "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 Sessions to be a Special Court to try the offence under this Act." There is no denying that in the State of Himachal Pradesh, all the Sessions Judges have been designated as Special Courts for the trial of offences under the Act. In the Act, there is no provision with regard to the mode of taking cognizance by the Special Courts established under the Act whether the Special Court is to take cognizance directly without the accused having been committed to it or it has to take cognizance only on the accused having been committed to it under Section 209 of the Code of Criminal Procedure. In case there is no procedure laid down in the Special Act, resort will have to be taken to the general procedure laid down in the Code of Criminal Procedure. Section 4 (2) of the Code of Criminal Procedure provides that all the offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In other words, Section 4 (2) of the Code of Criminal Procedure lays down that all the offences under any Special law will be investigated, inquired into, tried and otherwise dealt with in accordance with the procedure laid down in such Special law and, in case, no such procedure is laid down in the Special law, then such offences shall be investigated, inquired into, tried and otherwise dealt with in accordance with the provisions contained in the Criminal Procedure Code. In Directorate of Enforcement v. Deepak Mahajan and another, (1994) 3 SCC 440, a question arose before the Honble Apex Court with regard to the power of a Magistrate to grant remand under Section 167 of the Code of Criminal Procedure in respect of an accused of the offence under the Foreign Exchange Regulations Act, 1973, which is pari materia to the provisions of the Customs Act, 1962. Since there was no provision as to the remand of the accused in the Foreign Exchange j Regulations Act, 1973, the Honble Apex Court held : "That by virtue of Section 4(2) of the Code of Criminal Procedure read with Section 26(b) of the Foreign Exchange Regulations Act, 1973, Section 167 of the Code of Criminal Procedure becomes applicable to the special Acts such as the Foreign Exchange Regulations Act, 1973, or the Customs Act, 1962, and, therefore, a Magistrate had the power to grant remand in respect of a person arrested under Section 35(2) of the Foreign Exchange Regulations Act, 1973." Following the ratio laid down by the Apex Court, in the absence of special provision as to the procedure with regard to taking cognizance by the Special Court under the Act and in view of Section 4(2) of the Code of Criminal Procedure, the general procedure laid down with regard to the investigation, inquiry and trial of the offences under the Act, would be applicable. Under the Code of Criminal Procedure, the Special Court established under the Act, therefore, cannot take cognizance of the offence save and except on the accused having been committed to it in accordance with Section 209, Code of Criminal Procedure. A similar view was taken by a learned Single Judge of Madhya Pradesh High Court in Meera Bai v. Bhujbal Singh and another, (1994) 3 Crimes 894. In view of the above proposition of law, the Special Court, Mandi, had erred in taking cognizance of the offence under the Act directly without the accused having been committed to it under Section 209, Code of Criminal Procedure and, as such, the order passed by it on 15-12-1992 is on the face of it bad." 9. It is not for the first time, this proposition has cropped up in the present proceedings before this Court but on the other hand other High Courts of the country were faced with such proposition in various cases of the like nature. Before we propose to discuss the relevant factors in the present case, the view taken by various High Courts in this regard would be very much relevant to be referred to at the very out-set. Before we propose to discuss the relevant factors in the present case, the view taken by various High Courts in this regard would be very much relevant to be referred to at the very out-set. We thus propose to refer the view of the various High Courts taken in the matter as under: (1) In Jhagru Mahto v. State of Bihar and others, 1993 (1) Crimes 643, it has been held by a Division Bench of Patna High Court that the Special Court constituted under Section 14 of the Atrocities Act, which took cognizance of an offence under the Atrocities Act, could not do so unless the case has been committed to it and, as such, taking cognizance was vitiated in law. (2) Meera Bai v. Bhujbal Singh and others, 1995 Cri LJ 2376 : This case has been decided by a Division Bench of Madhya Pradesh High Court and the following observations made in this case would be relevant requiring consideration in the present case: "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 under Section 193 of the Code of Criminal Procedure, 1973. A Court of Sessions has been called a Special Court within the meaning of Section 14. As no special provision has been made under the Act, providing for any procedure to be followed by the Special Court, by virtue of provisions of Sections 4 and 5 of the Code, general procedure provided under the Code has to be followed. Once it is found that the special law does not provide any procedure for the trial of the offence created under the said Act, the general procedure provided under the Code has to be followed. In this view of the matter, it cannot be said that provision of Section 193 of the Code do not apply to the Special Court. According to Section 20, the provisions of the Act override the provisions of any other Act which are inconsistent. If the other Act makes any provision which is inconsistent with the provisions of this Act, provision of this Act shall prevail. According to Section 20, the provisions of the Act override the provisions of any other Act which are inconsistent. If the other Act makes any provision which is inconsistent with the provisions of this Act, provision of this Act shall prevail. As there is no provision prescribed in the Act for the procedure for the trial of the offence under the Act, it cannot be said that the general rules of procedure provided in the Code are inconsistent with this Act. Further the Legislature, thus, wherever intended to make a special provision for the trial of the offences, it has made specific provisions. The fact that the Legislature has not made any provision prescribing any special procedure for the trial of the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, though it has made a specific provision in other Acts go to suggest that it never intended to prescribe any special procedure for the trial of the offences under the Act." (3) Mangli Prasad and others v. Addl. Sessions Judge II and another, 1996 Cri LJ 3596. In this case also a learned Single Judge of Allahabad High Court came to the conclusion that cognizance of offence under the Atrocities Act cannot be taken by the Sessions Judge unless the accused is committed to him by a Magistrate and, therefore, the order of Sessions Judge sending complaint petition to Police Station under Section 156(3) of the Code of Criminal Procedure was without jurisdiction. The relevant paragraph of the aforesaid citation is reproduced hereunder: "In view of the provisions of Section 193 Cr.P.C. on Court of Sessions can take cognizance of an offence as a Court of original jurisdiction, unless the case has been committed to that Court by the learned Magistrate under Cr.P.C. for exercise of powers conferred on him. The Prevention of Atrocities Act is a special Act for protection of persons belonging to Scheduled Castes and Scheduled Tribes. There are other Special Acts also such as the U.P. Dacoity Affected Areas Act, 1983, in which there is provision in Section 7 of the Act which authorises the learned Special Judge to take cognizance under said Act. Under the provisions of Section 14(d) TADA, there is provision that the designated Court may take cognizance of the offence. There are other Special Acts also such as the U.P. Dacoity Affected Areas Act, 1983, in which there is provision in Section 7 of the Act which authorises the learned Special Judge to take cognizance under said Act. Under the provisions of Section 14(d) TADA, there is provision that the designated Court may take cognizance of the offence. Similarly, though the accused may not be committed to that Court for trial but under Section 5 of the Prevention of Corruption Act, the learned Special Judge may take cognizance of the offence, if a complaint is filed before him but I do not find such provision under the SC/SI (Prevention of Atrocities) Act, 1987. It is true that the learned Court below has been appointed as a Special Judge within the meaning of Section 2(d) of the Act but unless the accused is sent to him by the learned Magistrate I am afraid, he cannot take any cognizance of the offence under Section 14 of the said Act and he also cannot act as a Magistrate in exercising his power or in taking the cognizance of the Act like a Magistrate or to send that complaint petition to the police station concerned under Section 156(3), Cr.P.C. In this case, there was recourse left to him by sending the complaint petition to the Magistrate having the jurisdiction with a direction to act according to law and thereafter when the case will be again sent back to him since he was to try the case as he was appointed a Judge within the meaning of Section 2(d) of the Act and to hold the trial thereafter, the learned Court below may proceed with the trial." 10. The aforesaid decisions support the view taken by the learned Single Judge of this Court in Reference Case No. 1 of 1996, Days Singh and another (supra). There is contra view taken by other High Courts and we propose to discuss the judgments of various High Courts hereunder: (i) In 1992 (2) Kerala Law Times 748 In re : Director-General of Prosecution 1993 Cri LJ 760 a Division Bench of Kerala High Court held as under: "A Special Court is neither a Court of Sessions nor a Court of Magistrate. It is a Court of Original Criminal jurisdiction. It is a Court of Original Criminal jurisdiction. The Act provides for specifying a Court of Sessions to be a Special Court to try the offences under the Act. When such a Court of Sessions is so specified as a Special Court, it ceases to be a Court of Sessions as envisaged in the Code and it becomes a court of original criminal jurisdiction. When such a power is conferred on the Court of Sessions, which is a Special Court under the Act, that Court is clothed with all authority to proceed with the case. The power as a Special Court is conferred on a Court of Sessions which is one in the hierarchy of courts envisaged by the Code. When such a Court is seized of the dispute insofar 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-since no special provision to that effect is 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 Sessions, its procedure regarding trial should be governed by the provisions contained in the Code. In the instant case, a Court of Sessions is constituted to be the Special Court. Court of Sessions is one established as per the provisions contained in the Code. That Court, when constituted as Special Court and Act constituting it, is silent regarding the procedure to be followed by it, the ordinary incidents of procedure for that Court for the trial are to be followed. 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. The word try takes within its ambit proceedings prior to actual trial as well. So the Special Court can take cognizance of offences on circumstances excluding one out of the four recognized modes mentioned earlier, namely, upon commitment by a Magistrate as set out in Section 193 of the Code. The word try takes within its ambit proceedings prior to actual trial as well. So the Special Court can take cognizance of offences on circumstances excluding one out of the four recognized modes mentioned earlier, namely, upon commitment by a Magistrate as set out in Section 193 of the Code. In other words, the Special Court under the Act can take cognizance of an offence for trial in any one of the remaining three other methods under the Code. If the acts alleged in the complaint constitute not only offence under the Act but also offence under the Penal Code, the Special Court should take cognizance of that complaint even without an order of commitment by Magistrate as provided by Section 193 of the Code. In such a case, the Special Court should not only try the offence under the Act but also those falling under the Indian Penal Code. Any other view on this aspect will certainly go to defeat the intention of the Legislature in enacting the Act. Further, it is worthwhile to note the provisions contained in Section 20 of the Act. As per that Section, the provisions contained in the Act have overriding force over any other law for the time being in force. This also show that the provisions contained in Section 193 of the Code cannot be of any consequence to restrict the jurisdiction of the Special Court. If the various acts alleged against an accused constitute offence under the Act and combination of those acts constitute offence under the Indian Penal Code as well, the accused can be tried for both in the same proceedings. Thus, if the acts alleged against the accused constitute atrocities as defined in Section 3 of the Act as also offence under the IPC as well, accused can be tried for both in the same proceedings. For that, no order of commitment by a Magistrate is called for." Madhya Pradesh High Court has dissented from Meera Bai v. Bhujhal Singh and others, (supra) 1995 Cri LJ 2376. (ii) In Phuman Singh v. Kashmir Singh, 1995 (1) Cr. LR. For that, no order of commitment by a Magistrate is called for." Madhya Pradesh High Court has dissented from Meera Bai v. Bhujhal Singh and others, (supra) 1995 Cri LJ 2376. (ii) In Phuman Singh v. Kashmir Singh, 1995 (1) Cr. LR. 371, learned Single Judge of Punjab and Haryana High Court came to the conclusion that a complaint in respect of an offence under the Atrocities Act can be filed directly before the Sessions Judge exercising powers of Special Court under the Act and the Magistrate has no jurisdiction to take cognizance and then commit the case to Sessions Court for trial. The relevant paragraphs are 6, 7 and 8 which are reproduced hereunder for the sake of convenience : "6. Section 2 sub-clause (d) defines Special Court, which means a Court of Sessions specified as Special Court under Section 14, Section 14 reads as: "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 Sessions to be a Special Court to try the offences under this Act." 7. A bare perusal of Section 14 makes it abundantly clear that Court of Sessions is to be the Special Court to try the offences under this Act. Chapter II relates to offences of atrocities as enumerated in Section 3 of the Act vide Section 9 of the Act, the Government has been given the powers to take such necessary steps as it may consider necessary or expedient so as to prevent the commission of any such offences by conferring such powers to be exercised by police officers under the Code in such district or part thereof as the case may be and in particular the powers of arrest, investigation and prosecution of persons before any Special Court. There is no reference anywhere in the Act that the Magistrate has to take cognizance of the complaint filed by the aggrieved persons belonging to Scheduled Castes and Scheduled Tribes with regard to the alleged atrocities committed and falling in any of the clauses of Section 3 and on his, prime facie, satisfaction commit the accused before the Special Court. There is no reference anywhere in the Act that the Magistrate has to take cognizance of the complaint filed by the aggrieved persons belonging to Scheduled Castes and Scheduled Tribes with regard to the alleged atrocities committed and falling in any of the clauses of Section 3 and on his, prime facie, satisfaction commit the accused before the Special Court. Chapter II deals with a situation where offences of atrocities have been committed whereas Chapter III deals with the situation when upon a complaint or a police report it has come to the notice of the Court that a person is likely to commit an offence under Chapter II of this Act and in that eventuality the Special Court can order removal of such a person beyond the limit of the area for a period not exceeding 2 years and on failure of the person to remove himself from the area or entering thereon after removal without the permission in writing of the Special Court, the Court is empowered to arrest and order for his police custody in a place outside such area as the Special Court may specify. 8. The Apex Court in Ajit Kumar Pal it v. State of West Bengal and another, AIR 1963 SC 765 examined the provisions of Sections 190, 191, 192 and 194 Cr. P.C. so as to find out whether there is a statutory requirement under the Criminal Procedure Code as to the class or character of the material that must be before a Special Judge before he can assume and exercise his jurisdiction over a case. After examining the aforesaid provisions of the Criminal Procedure Code, the Court held that there is no statutory requirement under the Criminal Procedure Code as to the class and character of the material that must be before a special Judge before he can assume and exercise his jurisdiction over a case. After holding that provision under Section 190(1) is not applicable to a Special Judge, and considering whether it is the requirement of any principle of general jurisprudence that there should be some additional material to entitle the Court to take cognizance of the offence, it held as under: "The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of-and when used with reference to a Court or Judge, to take notice of judicially. It merely means-become aware of-and when used with reference to a Court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor, AIR 1943 Pat 245 (SB) by the learned Judges of the Patna High Court a passage quoted with approval by this Court in R.R. Chari v. State of Uttar Pradesh, 1951 SCR 312, at p. 320 : AIR 1951 SC 207 at p. 210 that the word cognizance was used in the Code to indicate the pont when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Surindra Mohan, ILR 37 Cal 412 at p. 416, "taking cognizance does not involve any formal action; or indeed action of any kind but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence". Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled. Thus, a Sessions Judge cannot exercise that original jurisdiction which Magistrates specified in Section 190(1) can, but the material on which alone he can apply his judicial mind and proceed under the Code is an order of commitment. But statutory provision apart, there is no set material which must exist before the judicial mind can operate. It appears to us therefore that as soon as a Special Judge receives the orders of allotment of the case passed by the State Government it becomes vested with jurisdiction to try the case and when it receives the record from the Government it can apply its mind and issue notice to the accused and thus start the trial of the proceedings assigned to it by the State Government." (iii) A Full Bench of the Kerala High Court in Hareendran v. Sarada, 1995 (IV Crimes 399 followed 1992 (2) Kerala Law Times 488 (supra) and it was held in a case under the Atrocities Act committal proceeding was not indispensable as a prelude to the case being tried before the Special Court and the Atrocities Act nowhere hinted committal proceedings and, therefore, Section 193 Cr.P.C. could not have any application. It has been further held that Section 14 enables the Special Court to exercise original jurisdiction and8 therefore, Magistrate has no jurisdiction to take cognizance of the case and, therefore, complaint ought to have been returned for presentation before proper Court and the proceedings before the Magistrate were liable to be quashed. (iv) In S. Damodar Reddy v. State of Andh, Pra and others, 1996 Cri LJ 3271 Single Judge of the Andhra Pradesh High Court has also taken the view that Special Court, can take cognizance under the Atrocities Act without an order of committal by a Magistrate, as set out in Section 193, Code of Criminal Procedure. The relevant Paragraphs are 7 and 8 which run as under : "To deal with the first question, it is necessary to understand the status of a Special Court and the Special Judge over which he presides. This aspect, fortunately for us, has been exhaustively dealt with by the Apex Court in Aft Antulay v. Ramdas Srinivas Nayak, AIR 1984 SC 718 : (1984) Cri LJ 647, where the powers of a Special Court constituted under the Prevention of Corruption Act (Act 2 of 1947) were in question. Under the above Act, a Special Court was constituted to take cognizance and try the offences under the Act. The question there was whether the Special Court could take cognizance of offences based upon private complaints and the nature of prepocess inquiry by the Special Court. Justice D.A. Desai, speaking for the Court of 5 Judges, observed (para 27) : "If a Special Judge is enjoined with a duty to try cases according to the procedure prescribed in foregoing provisions he will have to first decide whether the case was instituted upon a police report or otherwise than on police report and follow the procedure in the relevant group of Sections. Each of the Sections 251-A to 257 of 1898 Code which are in parai materia with Sections 238 to 250 of 1973 Code refers to what the Magistrate should do. Does the Special Judge therefore, become a Magistrate ? This is the fallacy of the whole approach. In fact, in order to give full effect to Section 8 (1), the only thing to do is to read Special Judge in Sections 238 to 250 wherever the expression Magistrate occurs. This is what is called legislation by incorporation. Does the Special Judge therefore, become a Magistrate ? This is the fallacy of the whole approach. In fact, in order to give full effect to Section 8 (1), the only thing to do is to read Special Judge in Sections 238 to 250 wherever the expression Magistrate occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile to go in search of the fact whether for purposes of Section 190. which conferred power on the Magistrate to take cognizance of the offence, Special Judge is a Magistrate ? What is to be done is that one has to read the expression Special Judge in place of Magistrate, and the whole thing becomes crystal clear." The net outcome of this position is that a new Court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific question brought before it as Court of original criminal jurisdiction, it had to refer to the Criminal Procedure Code undaunted by any designation claptrap. When taking cognizance, a Court of Special Judge enjoyed the powers under Section 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate, though as and by way of status it was equated with a Court of Sessions. Shorn of all embellishment, the Court of a Special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally-oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide-bound by the terminological status description of Magistrate or a Court of Sessions. Under the Code, it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied." The nature and powers of Special Court constituted under the very Act in question came to be considered by a Division Bench of the Kerala High Court and a Division Bench of the Patna High Court. Relying upon the above ruling of Apex Court, the Kerala High Court in Re. Relying upon the above ruling of Apex Court, the Kerala High Court in Re. Director-General of Prosecution, 1993 Cri LJ 760 held that the Special Court is a Court of original jurisdiction with all the powers under Section 190 of the Code to take cognizance of offences without an order of committal by the Magistrate as set out in Section 193 of the Code. However, the Patna High Court in Jhagru Mahto v. State of Bihar 1993 (1) Crimes 643 took a contrary view. It held that the Special Court under the Act is not empowered by the Legislature to take cognizance of the offence under the Act without there being the committal order by the Magistrate and that there was lacuna in the Act in not providing any provision for taking cognizance of the offences under the Act. The decision of the Apex Court was not brought to the notice of the learned Judges. The status a Special Court enjoys was not kept in view by the learned Judges in arriving at their decision. The view of the Patna High Court cannot, therefore, be accepted. To consider the second question, it is necessary to notice that the Prevention of Corruption Act empowered the Special Court not only to try the offences under that Act but it also specifically empowered it to take cognizance of the offences under that Act. It is therefore commented that the decision of the Apex Court dealing with the nature and status of the Special Court and its powers must confine to a Special Court constituted under the Prevention of Corruption Act and that it has no application for the Special Court constituted under Section 14 of the Act and Section 193 of the Code is a bar to take cognizance of the offence in the absence of a provision enabling the Special Court to take cognizance of the offences under the Act. This aspect is also considered in the decision of the Kerala High Court in Re. This aspect is also considered in the decision of the Kerala High Court in Re. Director-General of Prosecution 1993 Cri LJ 760 (supra) The Apex Court in State of Bihar v. Ram Naresh, AIR 1957 SC 389 : 1957 Cri LJ 567 after noting the distinction between inquiry and trial in the scheme of the Code took the view that the word try in the phrase "offences for which he is tried" in Section 321 of the Code is wide enough to cover inquiry and trial and that the word was not used in any limited sense. The learned Judges of the Kerala High Court relying upon the interpretation of the word try given by the Apex Court, are also of the view that the Special Court under Section 14 of the Act has got wide powers of not only trial but also inquiry into all the offences under the Act. as a Court of original jurisdiction in terms of the Code. In my view the decision in Antulay s case 1984 Cri LJ 647 (SC) (supra) is a complete answer to this question. We need not examine the meaning of the expression try used in Section 14 of the Act to find whether the Special Court is empowered to take cognizance of the offences under the Act. Thus the matter is no longer res integra. The Court categorically held that the Special Court is a Court of original criminal jurisdiction and has therefore, all the powers of the Magistrate under Section 190 of the Code. The Apex Court in Antulays case 1984 Cr LJ 647 ruled, as extracted earlier. When taking cognizance, a Court of Special Judge enjoyed the powers under Section 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of Sessions." In view of the above statement of law holding that the Special Court is a Court of original criminal jurisdiction enjoying all the powers which a Court of original jurisdiction enjoys and it follows that it is empowered to take cognizance of the cases under the Act. The Special Court has therefore rightly taken cognizance of the offence against the petitioner. The Special Court has therefore rightly taken cognizance of the offence against the petitioner. The 1st contention of the learned counsel for the petitioner is, therefore, rejected." (v) In Bhoora Lal and others v. State of Rajasthan and others, 1997 CCR 661 Single Judge of the Rajasthan High Court held as under: "After establishment of Special Court within the territorial limits of Jodhpur, a Magistrate has no jurisdiction to take cognizance of the offences under Act No. 33 of 1989. In my humble opinion, if a complaint is made in writing before a Magistrate within territorial limits of Jodhpur where a Special Court has been established under Section 14 of Act No. 33 of 1989 (Atrocities Act) then in such a situation, within the meaning of Section 201, Cr.P.C. if the complaint is in writing, a learned Magistrate is under legal obligation to return it for presentation to the Special Court with an endorsement to that effect and if the complaint is not made in writing, direct the complainant to approach the Special Court established under Section 14 of the Act No. 33 of 1989. Learned Magistrate within territorial limits of Jodhpur, where a Special Court has been established under Act No. 33 of 1989, has no jurisdiction to direct the investigating Agency to conduct the investigation within meaning of Section 156(3) Cr.P.C. The procedure adopted in the present case by the learned Magistrate is absolutely illegal and without jurisdiction and I am also of the view that the learned Additional Sessions Judge has also no jurisdiction to entertain the revision and direct the learned Magistrate to take cognizance against the petitioners under Sections 3(i), (iv), (v), (ix) and (x) of Act No 33 of 1989." 11. In order to appreciate this controversy in its right perspective various provisions of the Code of Criminal Procedure and that of the Atrocities Act applicable to the present case are referred hereunder: CODE OF CRIMINAL PROCEDURE "Section 2 (w) defines summons case thus : "Summons case" means a case relating to an offence, and not being a warrant-case; "warrant case" has been defined in Section 2 (x) as : "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years; Section 4. Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code 45 of 1860 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. "Section 5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." "Sec. 6 Classes of Criminal Court. - Besides, the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely : - (i) Court of Sessions; (ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates." Note : The Special Court constituted under the Atrocities Act does not come within this provision. "Sec. 26. Courts by which offences are triable. -Subject to the other provisions of this Code - (a) any offence under the Indian Penal Code (45 of 1860) may be tried by (i) the High Court, or (ii) the Court of Sessions, or (iii) any Other Court by which such offence is shown in the First Schedule to be triable; (b) any offence under any ether law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by (i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable." Section 193. Cognizance of offences by Court of Sessions. Cognizance of offences by Court of Sessions. - Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Court/ "2.9. Commitment of case to Court of Sessions when offence is triable exclusively by it.—When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall (a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Sessions, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are ot be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Sessions." ATROCITIES ACT According to Section 2(b) "Code" means the Code of Criminal Procedure, 1973 (2 of 1974). Section 2(d) defines Special Court: (d) "Special Court" means a Court of Sessions specified as a Special Court in Section 14; "Section 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 Sessions to be a Special Court to try the offences under this Act." 12. The punishment for offences under the Atrocities Act has been provided under Section 3. The punishment provided for offences coming within the ambit of Section 3(i) of the Atrocities Act is imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. The punishment for offences under the Atrocities Act has been provided under Section 3. The punishment provided for offences coming within the ambit of Section 3(i) of the Atrocities Act is imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. Punishment fo~ offences under Section 3(2) of the Atrocities Act varies from offence to offence which could be capital punishment, imprisonment for life and imprisonment which shall not be less than six months but which may extend to seven years and with fine. 13. The sole purpose of referring to punishment provided for committing various offences under the Atrocities Act is that it ranges from five years imprisonment with fine to imprisonment for life and capital punishment and for some offences minimum imprisonment has also been provided. 14. There is no dispute to the proposition that under the Atrocities Act, there is no specific provision with regard to taking cognizance by the Special Court and the procedure to be followed in trying cases by such Special Court, therefore,. procedure laid down in the Code of Criminal Procedure with regard ot investigation, inquiry and trial of the offences under the Atrocities Act, would be applicable. This is the intention of Section 4(2) of the Code of Criminal Procedure, referred to above. 15. Insofar as the Code of Criminal Procedure is concerned, the criminal cases are to be tried as summons-case or as warrant case. Insofar as the offences under the Atrocities Act are concerned, the punishment provided, as pointed out above, has been death/imprisonment for life or imprisonment for a term exceeding two years, meaning thereby that they are to be tried as warrant case." 16. Under the Code of Criminal Procedure some cases under the IPC have to be tried by a Court of Sessions as provided in the First Schedule. There is a specific procedure mentioned in the Code of Criminal Procedure when the cases are to be tried by the Sessions Judge. Such a trial in a way does not depend upon the punishment provided for a case to be tried by a Court of Sessions but as has been provided under Schedule I that particular case can be tried by the Sessions Judge. There are certain offences which are triable by the Court of Sessions wherein even the imprisonment for seven years is provided. There are certain offences which are triable by the Court of Sessions wherein even the imprisonment for seven years is provided. So the trial by a Sessions Judge has to be regulated by the provisions of the Code of Criminal Procedure. 17. Insofar as the offences committed under other provisions of law are concerned, they are to be tried by the Courts referred in the Second Schedule of the Code of Criminal Procedure in case that other law does not provide the Forum to try said offences. For example, if under the Atrocities Act, Section 14 was not there, in that event classification for trial could be dealt with under the II Schedule which runs as under: II CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS Offence Cognizable or Non-cognizable Bailable or non-bailable By what Court triable If punishable with death, imprisonment for life, or imprisonment for more than seven years. Cognizable Non-bailable Court of Sessions If punishable with imprisonment for 3 years and upwards but not more than 7 years. Ditto Ditto Magistrate of the first class. If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable | Bailable Any Magistrate 18. However, under Section 14 of the Atrocities Act for the purpose of providing for speedy trial a Special Court has been empowered to try offences and that Special Court is a Court of Sessions so notified in the State of Himachal Pradesh. There is no doubt that Sessions Judge of a District means such a Special Court as per Section 2(d) read with Section 14 of the Atrocities Act. The designation of the Forum trying offences under the Atrocities Act is that of a Special Court and that being so the Court having status of Sessions Court, loses all significance. Section 14 has been provided for effecting speedy trial and a Court of Sessions has been declared as a Special Court so as to ensure not only speedy trial but also to empower a senior Judicial Officer to try the offences being committed against the weaker section of the Society. A senior experienced Judicial Officer who happens to be a Sessions Judge has been designated as a Special Court to try offences under the Atrocities Act. With this background the provisions of the Code of Criminal Procedure have to be interpreted and taken note of. A senior experienced Judicial Officer who happens to be a Sessions Judge has been designated as a Special Court to try offences under the Atrocities Act. With this background the provisions of the Code of Criminal Procedure have to be interpreted and taken note of. Thus Section 5 of the Code of Criminal Procedure permits the creation of Special Court under the Atrocities Act. Section 6 of the Code of Criminal Procedure, as such, has not included Special Court within its ambit. 19. The law cited above in support of the proposition that Special Court cannot take cognizance of any offence under the Atrocities Act, without commitment, pre-supposes that Special Court does not lose the status of Sessions Judge meaning thereby that the trial Court remains the Court of Sessions Judge. This aspect does not appear to be legally sound and reasonable one. The view taken by the various High Courts, as discussed above, that Special Court under the Atrocities Act acquire the status of a Court of original jurisdiction, under the circumstances, appears to be reasonable, sustainable and valid one. 20. In view of Section 26(b) of the Code of Criminal Procedure, the offences under the Atrocities Act are ot be tried by such Court as mentioned in the said Act, that Court being a Special Court. 21. As pointed out earlier, status of a Sessions Court ceases to exist when the said Court is specified and notified as a Special Court. The Special Court, as such, becomes the Court of original jurisdiction. If it is so, the procedure to be followed by such a Court would be as is provided for summons case or warrant case, as per the Code of Criminal Procedure. In case only the Sessions Judge was to try such offences, it could have been so provided under Section 14 of the Atrocities Act. But again it is not so. That reflects the mind of the Legislature. Thus, intention of the Legislature is clear from the wording of Section 14 of the Atrocities Act where a new Forum to try the offences has been notified and specified. Needless to say, the commitment proceedings, if curtailed would avoid a stage of the procedure which helps in speedy trial of the case as has been proposed by creating Special Court under the Atrocities Act. Needless to say, the commitment proceedings, if curtailed would avoid a stage of the procedure which helps in speedy trial of the case as has been proposed by creating Special Court under the Atrocities Act. Otherwise the procedure for warrant case* or summons case5 shall make the trial speedy and it is with this background that the Special Court acquired the status of a Court of original jurisdiction. 22. There is no doubt that under Section 193 of the Code of Criminal Procedure, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. This provision definitely apply where a case is to be tried by a Court of Sessions under the Code of Criminal Procedure inasmuch as in that event the Court of Sessions Judge is not a Court of original jurisdiction. The cognizance under the Cr.P.C. of an offence can be taken by a Court of original jurisdiction only. At the cost of repetition it may be observed that the Court of Sessions under Section 14 of the Atrocities Act has been notified as a Special Court. There is nothing in the Code of Criminal Procedure forbidding the Special Court, notified under Section 14 of the Atrocities Act, to take cognizance of the offence thereunder On the other hand, Section 14 of the Atrocities Act empowers the Special Court to try the offences under the Atrocities Act. Needless to say, the word try includes inquiry also as has been held in the cases referred to in the earlier part of the judgment. Trial of a case commences when an accused is called upon to lead to a charge. The word Inquiry has been defined under Section 2(g) of the Code of Criminal Procedure as follows : "2(g). inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;" That means the proceedings up to the stage of the framing of charge are in the nature of inquiry. When a report under Section 173 Cr.P.C. is put up before the Special Court the factum of taking of cognizance by the Special Court and summoning of the accused thereafter and the proceedings before the framing of the charge would come within the ambit of inquiry. Special Court is a Court of original jurisdiction. When a report under Section 173 Cr.P.C. is put up before the Special Court the factum of taking of cognizance by the Special Court and summoning of the accused thereafter and the proceedings before the framing of the charge would come within the ambit of inquiry. Special Court is a Court of original jurisdiction. The procedure to be followed by such a Court would be keeping in view the sentence provided for a specific offence so as to proceed with the case as a summons case or warrant-case, as the case may be. 23. Section 193 of the Code of Criminal Procedure will have absolutely no applicability, so far as the Special Court is concerned. At this point, Section 209 Cr.P.C. can safely be referred. Under this provision when a case is instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit the case to the Court of Sessions as provided under that provision. There is no doubt that under Section 209 in a way the duty cast upon a Magistrate is a judicial duty and in exercise of the same he is to come to the conclusion that the offence is exclusively triable by the Court of Sessions before committing the accused to the Court of Sessions. The likelihood of any case not being exclusively triable by a Court of Sessions under certain specific circumstances cannot be ruled out and in order to come to that inference it is the Magistrate who has to exercise that judicial discretion. Whether for an offence exclusively triable by a Special Court under Section 14 of the Atrocities Act, the Magistrate has been empowered to exercise such a Judicial discretion ? The definite answer to this proposition would be no. Under the provisions of the Atrocities Act, it is the Special Court only which has been empowered to try the cases which includes the power of inquiry also. With this background also, the view taken by the learned Single Judge does not hold good. Otherwise also, under Section 209 of the Cr.P.C. it is only the offences triable by a Court of Sessions exclusively which have to be committed to that Court. With this background also, the view taken by the learned Single Judge does not hold good. Otherwise also, under Section 209 of the Cr.P.C. it is only the offences triable by a Court of Sessions exclusively which have to be committed to that Court. Here in the present case the offences are exclusively triable by a Special Court and as such the question of committal proceedings does not arise. Section 209 of the Code of Criminal Procedure comes into picture only in case the Magistrate is competent to take cognizance under Section 190 Cr.P.C. The Magistrate, admittedly, is hot a special Court and, as such, is debarred to take cognizance for the offences under the Atrocities Act. Under the Code of Criminal Procedure, the Magistrate has jurisdiction to take cognizance of the offences as per Schedules I and II or in case any other law so permitted. In this case Schedules I and II of the Code of Criminal Procedure are not applicable and Atrocities Act also does not authorise the Magistrate to take cognizance. In case the Magistrate is not legally competent to take cognizance, he has no legal authority under Section 209 Cr.P.C. to come to the conclusion that the offence is exclusively triable by a Special Court. The Special Court under the Atrocities Act has to act, as such, like a Magistrate to take cognizance under Section 190 Cr.P.C, being a Court of original jurisdiction, as is the Forum, under the Cr.P.C, of a Magistrate, being the Court of original jurisdiction. In this view of the matter also, the Special Court can alone legally take cognizance of the offences under the Atrocities Act. 24. As pointed out earlier, some offences under Section 3 of the Atrocities Act carry lesser punishment and some offences a severe punishment like death or imprisonment for life. In case it was the intention of the Legislature under the Atrocities Act that only those offences which come within the purview of Cr.P.C could be tried by a Sessions Court, it could have been so provided thereunder but it has not been so done which only means that all types of offences under the Atrocities Act are to be tried by a Special Court having original jurisdiction and the procedure to be followed, as provided under the Code of Criminal Procedure. 25. 25. Thus, taking into consideration the overall legal aspects, as discussed above, and the purpose and intention of Section 14 of the Atrocities Act, the view taken by the learned Single Judge is not a correct view. On the other hand, the ratio of the cases decided by Kerala High Court, Punjab and Haryana High Court, Andhra Pradesh High Court and Rajasthan High Court is to be accepted as a valid interpretation of the law in this particular behalf. 26. It may not be out of place to mention here the Preamble of the Atrocities Act which runs as under: "An Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto, Be it enacted by Parliament in the Fortieth year of the Republic of India." 27. The Preamble itself speaks of the Special Court and its establishment to achieve the object of speedy trial. 28. in view of the foregoing reasons, we declare the law laid down by the learned Single Judge in Reference No. 1 of 1996, Daya Singh and another v. Narad and 5 others (supra) to be not a valid one. Accordingly, there is no necessity to send the cases under appeal for commitment and trial, as envisaged under the judgment of the learned Single Judge. 29. The two appeals are now to be disposed of on merit: CRIMINAL APPEAL No. 293 of 1993 30. The prosecution case, as put up against the accused, has been that on 14th February, 1992, accused Balak Ram had gone to the house of PW Neela and Parma Nand with his co-accused and they were alleged to have broken the door of their house with kick blows and had called the complainant as Dagiyo, a name used with insulting intention as the complainant belonged to Julaha caste while all the accused were Rajputs, a superior caste. Again, all these accused went to the house of complainant on 20th February, 1992, and repeated the same acts and had broken the planks of the door while using obscene language with the intention of insulting the complainant. Again, all these accused went to the house of complainant on 20th February, 1992, and repeated the same acts and had broken the planks of the door while using obscene language with the intention of insulting the complainant. The Special Court, after trial, acquitted the accused as the prosecution was held to be not establishing charges against the accused beyond all reasonable doubt. 31. In a case of present nature, the admitted proposition of law is that unless and until the trial Court has appreciated the evidence in a perverse, illegal and unsustainable manner, this Court will not, ordinarily, interfere with the acquittal order. There is again no dispute to the proposition that in case the view taken by the trial Court was possible on the basis of the evidence examined during the trial, the acquittal order in that event has to be maintained. The present case is of that nature. 32. We have been taken through the entire evidence examined during the trial and we are of the view that the inferences drawn by the trial Court were available from the evidence examined during the trial. The trial Judge has, in detail, discussed the evidence and has rightly come to the conclusion that on the point of charge under Section 458 IPC, the evidence of PW1, PW2, PW3, PW4 and other witnesses showed that none of the accused entered the house of the complainant. With respect to the main occurrence, the observations of the trial Court with respect to evidence examined to establish the same were as under: “The evidence discussed above shows that there are many improvements and a lot of discrepancies and contradictions on the material points and the PWs are not reliable. In a criminal case, the prosecution is to prove their case beyond all doubts, but in this case this Court is of the opinion that the nature of the depositions recorded make it highly unsafe to rely upon the PWs. The charge under Sections 143, 458 and 149 IPC has already been held to be not proved even without commenting upon the character and nature of the evidence. Even the offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not made out against even Balak Ram and Parkash." 33. The charge under Sections 143, 458 and 149 IPC has already been held to be not proved even without commenting upon the character and nature of the evidence. Even the offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not made out against even Balak Ram and Parkash." 33. Thus, the order of acquittal passed by the trial Court cannot be said to be based upon evidence being appreciated in a perverse, illegal and unsustainable manner it cannot also be said that the appreciation of evidence by the trial Court was palpably wrong. The present appeal, as such, being devoid of any merit, is dismissed CRIMINAL APPEAL No. 380 of 1995 34. In this appeal, the accused-respondent was charged for having committed an offence punishable under Section 3(1) of the Atrocities Act. The prosecution case against him has been that on 1st September, 1992 one Raj Rani belonging to Scheduled Caste had come to take water from a public tap in village Seri and the accused who was a Rajput obstructed her and had not allowed her to take water from the said tap and had insulted her as she belonged to a Scheduled Caste. After trial the accused was acquitted and the present appeal has been preferred assailing the said acquittal order. 35. In the present case too, we have been taken through the entire evidence examined during the trial and we also find no ground whatever to differ with the inferences drawn by the trial Judge. The trial Judge has discussed the evidence, in detail, examined during the trial under Paragraphs 7, 8 and 9 of the judgment. The concluding paragraph of the impugned judgment runs as under: "There are many other contradictions and some other factors which make a case appear to be a false case but the evidence discussed above only is sufficient to conclude that the case of the prosecution has absolutely nothing to stand upon. The factors discussed above are sufficient to make the Court cautious and doubtful about the whole story woven by PWs 1 to 4. The Court is of the opinion that it is not safe to place reliance on the statements of any of the PWs 1 to 4...." 36. The factors discussed above are sufficient to make the Court cautious and doubtful about the whole story woven by PWs 1 to 4. The Court is of the opinion that it is not safe to place reliance on the statements of any of the PWs 1 to 4...." 36. The aforesaid view taken by the Court below was also possible from the evidence examined during the trial, through which we have been taken by the Seamed counsel for the parties. This appeal, again, being without any force, is dismissed. 37. The personal and surety bonds furnished by the accused persons in both the appeals stand discharged. Appeal dismissed.