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2000 DIGILAW 635 (KAR)

R. THIMMAYYA SHETTY v. VASANTH RAJ

2000-09-11

KUMAR RAJARATNAM

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KUMAR RAJARATNAM, J. ( 1 ) THE petitioners are accused in Private Complaint No. 3 of 1993 on the file of the Special Judge, Raichur. The case was numbered as Special a. C. NO. 20 of 1994. ( 2 ) THE complainant-respondent filed a private complaint directly in the Court of Special Judge, Raichur on 7-4-1993 for offences punishable under Sections 341, 342, 506 (11) read with Section 109 of the IPC and under Section 3 (lxx) and (iv) of the Scheduled Castes and Scheduled tribes (Prevention of Atrocities) Act, 1989 (Act No. 33 of 1989) (hereinafter referred to as the 'act') along with other offences under the Penal code. ( 3 ) THE case was referred as a private complaint No. 3 of 1993 by the learned Sessions Judge. The learned Special Judge after recording the sworn statement of the complainant and his witnesses passed an order registering the case as Special A. C. No. 20 of 1994 and issuing summons to the petitioner and five others. The petitioners being aggrieved by the entire proceedings initiated by the Special Judge, Raichur have preferred this criminal petition. ( 4 ) THE short but important question that arise for consideration is: whether a Special Court designated under the Act can take cognizance of any offence under the Act without the case being committed to it by the Magistrate under Section 193 of the Code of criminal Procedure (hereinafter referred to as the 'code')? ( 5 ) SECTION 193 of the Code reads as follows: "193. Cognizance of offences by Courts of Sessions. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session 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 Code". A reading of Section 193 indicates that except otherwise provided by this code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction unless it has been committed to it by the Magistrate. A reading of Section 193 indicates that except otherwise provided by this code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction unless it has been committed to it by the Magistrate. In other words, in the absence of any express provision under the Code or under any other law in force it is not permissible for a Court of Session to take cognizance of any offence as a Court of Original Jurisdiction unless it has been committed by the Magistrate. ( 6 ) SECTION 14 of the Act indicates that the State Government shall with the concurrence of the Chief Justice of the High Court by the notification specify for each district a Court of Sessions to be a Special Court to try offences under the Act. ( 7 ) WHILE the matter was being argued by Mr. R. B. Deshpande, the learned Senior Counsel for the petitioners it was brought to my notice that this Court in State of Karnataka v Nagappa and Others, had pronounced that no committal proceedings is necessary for the Special court to take cognizance of the offences under the Act. The Court held at paragraphs 61 and 62 as follows:"61. If the acts alleged in the complaint constitute not only of-fence/s under the Act, but also under the Indian Penal Code, the special Court can take cognizance of that complaint in respect of offence/s under the Indian Penal Code even without an order of commitment by a Magistrate as provided by Section 193 of the code. In such a situation, the Special Court can try not only the offence/s under the Act, but also those falling under the Indian penal Code. 62. In this context, it is worthwhile to note the provisions contained in Section 20, which gives over-riding effect to the provisions contained in the Act over any other law for the time being in force. Section 20 also throws much light that the provisions contained in Section 193 cannot be of any consequence to restrict the jurisdiction of the Special Court". The Court relied on the judgment of the Kerala High Court In re director General of Prosecution. This view was confirmed by the Full Bench judgment of the Kerala High Court in Hareendran v Sarada. The Court relied on the judgment of the Kerala High Court In re director General of Prosecution. This view was confirmed by the Full Bench judgment of the Kerala High Court in Hareendran v Sarada. The view taken by the Kerala High Court did not find approval by the Division bench of the Andhra Pradesh High Court in the case of Referring Officer represented by State of Andhra Pradesh v Shekar Nair. ( 8 ) I was not persuaded to accept the view of the learned Single Judge in the case of State of Karnataka, supra. Therefore, I was inclined to place the matter before a larger Bench for an authoritative to pronouncement. ( 9 ) IN the meanwhile the Supreme Court in the case of Gangula Ashok and Another v State of Andhra Pradesh, has set at rest the controversy and has pronounced that the Court of Session which is a Special Court cannot take cognizance of any offence directly without the case being committed to it by the Magistrate. It is relevant to read the pronouncement of the Supreme Court. Paragraphs 8, 9, 10, 11,12, 13 and 14 of the judgment reads as follows:"8. Section 14 of the Act says that 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 be a Special court to try the offences under this Act. So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word 'trial' is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word 'inquiry' is defined in Section 2 (g) of the Code as 'every inquiry, other than trial conducted under this Code by a Magistrate or Court'. So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of session as Special Court is to enure speed for such trial. 'special court' is defined in the Act as 'a Court ot Session specified as a special Court in Section 14'. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of session as Special Court is to enure speed for such trial. 'special court' is defined in the Act as 'a Court ot Session specified as a special Court in Section 14'. (vide Section 2 (l) (d ). 9. THUS the Court of Session is specified to conduct a trial and no other Court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of Session can be specified as a Special Courts? Evidently the Legislature wanted the Special Court to be Court of Session. Hence the particular court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session 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 code which contains a fasciculus of provisions for Trial before a court of Session'. 10 Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes a 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. Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word 'expressly' which is employed in Section 193 denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate. 11 Neither in the Code nor in the Act there is any provision 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 straightaway be failed before such Special Court for offences under the Act. It can be discerned from the hierarchical settings of Criminal Courts that the Court of Session is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which Magistrates have to do until the case is committed to the Court of Session. 12 We have noticed from some of the decisions rendered by various High Courts that contentions were advanced based on sections 4 and 5 of the Code of suggesting that a departure from section 193 of the Code is permissible under special enactments. Section 4 of the Code contains two sub-sections of which the first sub-section is of no relevance since it deals only with offences under the Indian Penal Code. However, sub-section (2) deals with offences under other laws and hence the same can be looked into. Sub-section (2) of Section 4 is extracted below: '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'. 13 A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions would apply in place of the particular provision of the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions would apply in place of the particular provision of the Code. If there is no such contrary provision in other was, then provisions of the Code would apply to the matters covered thereby. This aspect has been emphasised by a Constitution Bench of this Court in paragraph 16 of the decision in A. R, Antulay v Ramdas Srinivas Nayak. It reads thus: 'section 4 (2) provides for offences under other law which may be investigated, inquired into, tried and otherwise dealt with according to the provisions of 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 the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by Criminal Courts of various designations'. 14 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. Section 5 of the Code reads thus: 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'". (emphasis supplied) ( 10 ) THE Supreme Court further held at paragraph 16 as follows: "hence we have no doubt that a Special Court under this 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 Code. (emphasis supplied) ( 10 ) THE Supreme Court further held at paragraph 16 as follows: "hence we have no doubt that a Special Court under this 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 Code. In other words, a complaint or a charge-sheet cannot straightaway be laid before the special Court under the Act". (emphasis supplied) ( 11 ) NOW that the matter has finally been concluded by the Supreme court in Gangula Ashok's case, supra, it was not necessary to refer the matter to a larger Bench. ( 12 ) RELYING on the judgment of the Supreme Court in Gangula ashok's case, supra, I hold that the Special Court constituted under the act cannot proceed with the trial of an offence under the Act unless the case is committed to that Court by a Magistrate under Section 193 of the code. ( 13 ) ANOTHER question that arose for consideration was whether offences under the Penal Code triable exclusively by the Session Court can be tried by the Special Court along with offences under the Act if it arises out of the same transaction. The answer is if the Magistrate commits the case to the Special Court, the Special Court will have authority and jurisdiction to take cognizance for trial of the offences under the Act and also offences under the Penal Code triable exclusively by the Sessions Court and for other lesser offences if it arises out of the same transaction. In other words once the Magistrate commits the case to the Special Court it would not be necessary for the Special Court to delete the other connected offences under the Penal Code. ( 14 ) THE Special Court can after the case being committed to it try the case as a Court of Original Jurisdiction as required under Chapter XVIII of the Code (Trial before a Court of Session ). The Special Court can try other offences under the Penal Code if the alleged offence arises out of the same transaction. ( 15 ) IN view of the judgment of the Supreme Court in Gangula ashok's case, supra, the judgment rendered by this Court in the case of state of Karnataka, supra, is impliedly overruled. The Special Court can try other offences under the Penal Code if the alleged offence arises out of the same transaction. ( 15 ) IN view of the judgment of the Supreme Court in Gangula ashok's case, supra, the judgment rendered by this Court in the case of state of Karnataka, supra, is impliedly overruled. ( 16 ) CONSEQUENTLY relying on the judgment of the Supreme Court in gangula Ashok's case, supra, the proceedings before the Special Court on the file of the Special Judge, Raichur in Private Complaint No. 3 of 1993 (Special Act No, 20 of 1994) is quashed. ( 17 ) THE Special Court is directed to remit the case to the Jurisdic-tional magistrate and the Magistrate shall proceed with the case under chapters XV and XVI of the Code and if a prima facie case is made out shall commit the case to the Special Court under Section 209 of the Cr. P. C. in accordance with law. ( 18 ) SINCE a number of cases are pending before the Special Court under the Act which have not been committed by the Jurisdictional magistrate as required under Section 193 of the Code it has become necessary to give the following directions: all Special Courts which are dealing with offences under the Act which have not been committed under Section 193 of the Code shall stop the proceedings and remit the case to the Jurisdictional Magistrate to enable the Magistrate to dispose of the matter in accordance with chapters XV and XVI of the Code. This direction will apply to all matters pending either on a private complaint under Section 200 or on a police report. When the matter is committed to the Special Court the Court shall conduct the case in accordance with Chapter XVIII and other provisions of the Code in accordance with law as a Court of original jurisdiction. ( 19 ) THIS criminal petition is allowed with the above directions. The registry is directed to send copies of this judgment to all the Special courts notified under the Act in the State for compliance. --- *** --- .