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2004 DIGILAW 744 (AP)

Janga Venkateswarlu v. State Of A. P.

2004-07-27

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) JANGA Venkateswarlu, accused in sessions Case No. 1 of 1996 on the file of special Judge for trial of offences under scheduled Castes/scheduled Tribes (Prevention of Atrocities) Act-cum-Additional sessions Judge, Khammam, had preferred the present criminal appeal, as against the judgment made in Sessions Case No. 1 of 1996, dated 14-07-1997. ( 2 ) THE facts, in brief, are that on 09-06-1992 at 09. 00 hours, the complainant-victim-Vuyyala Saraswathi lodged a complaint stating that on 08-06-1992 when she was sleeping in the front of the yard along with her minor son on one cot, and her brother-in-law s daughter Vijaya Laxmi in another cot, and her husband was out of station, on that day, the accused came in the mid-night, woke her up, gagged her mouth, threatened to kill if she raised voice, taken her to the backside of the house and committed rape on her and fled away, and then she informed the same to her father-in-law and it was also stated that Vijaya Laxmi who was sleeping by her side informed that she woke up and witnessed the accused taking her and with fear, she pretended as if she was sleeping. Basing on the same, Police of Penuballi registered a case in Crime no. 40 of 1992, under Sections 376 IPC and 3 (1) (x) (xi) and (xiii) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 (hereinafter for short referred to as "the Act") and after completion of investigation, Police filed charge-sheet against the accused. Prosecution had examined P. Ws. 1 to 9 and Exs. P-1 to P-7 were marked. On appreciation of the oral and documentary evidence, the learned Judge, found the accused not guilty for the offence under Section 3 (2) (v) of the Act, and acquitted of the said charge, but found him guilty for the offence under Section 376 IPC, convicted and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for four months. Aggrieved by the same, the present appeal is preferred. 2,000/-, in default to suffer rigorous imprisonment for four months. Aggrieved by the same, the present appeal is preferred. ( 3 ) SRI Praveen Kumar, learned counsel representing appellant-accused would submit that the special Court would not get jurisdiction to try the case at all unless an order of committal is made, and there is no controversy that there is no such committal order in the present case and hence, the proceedings are vitiated and the appellant-accused is entitled for an acquittal and the appeal may have to be allowed on this ground alone. The learned counsel placed strong reliance on vidyadharan, appellant v. State of Kerala, respondent, and also M. A. Kuttappan, appellant v. E. Krishnan Narayanar and another, respondent. ( 4 ) PERCONTRA, the learned Additional Public prosecutor, Sri Niranjan Reddy, had drawn the attention of this Court to Sections 460 and 465 of the Code of Criminal Procedure (for short "cr. P. C. ") and would submit that just for want of the committal, no prejudice is caused to the appellant-accused and on such a technical flaw, the order of acquittal cannot be recorded. The learned Additional Public prosecutor also had placed strong reliance on the decision of the Apex Court in Madhya pradesh v. Bhooraji and others and also willie (William) Slaney, appellant v. State of madhya Pradesh, respondent, and would submit that no doubt it is a matter relating to the charge and the alteration of charge, but the same principle would be applicable in a case of committal also and unless a failure of justice has in fact been occasioned on such a ground, the conviction and sentence imposed by the Special Court cannot be disturbed by this Court. He had drawn the attention of this Court to sub-section (2) of section 465 Cr. P. C. in particular, in this regard. ( 5 ) HEARD both the counsel. ( 6 ) THE factual details need not be narrated further. No doubt, the learned Judge, had discussed the evidence of P. Ws. 1 to 9 and also Exs. P-1 to P-7, and recorded findings in this regard. P. C. in particular, in this regard. ( 5 ) HEARD both the counsel. ( 6 ) THE factual details need not be narrated further. No doubt, the learned Judge, had discussed the evidence of P. Ws. 1 to 9 and also Exs. P-1 to P-7, and recorded findings in this regard. ( 7 ) IT is brought to the notice of this Court that the charge sheet against the accused was filed before the Special Judge, who had taken cognizance of the same as Sessions case No. 15 of 1995 and as the said Court was abolished, the same was transferred to the Special Judge for trial of offences under scheduled Castes/scheduled Tribes (Prevention of Atrocities) Act-cum-Additional sessions Judge, Khammam, on the point of jurisdiction and the same was numbered as sessions Case No. 1 of 1996. ( 8 ) SECTION 193 Cr. P. C. dealing with cognizance of offences by Courts of Session, reads as hereunder,"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", ( 9 ) IT is no doubt true that this question canvassed at the stage of appeal was not raised either before the Special Court or inthe grounds of appeal. However, it is submitted that inasmuch as it would touch the very competency of the Court to deal with the matter, the trial is definitely vitiated. ( 10 ) IN Vidyadharan s case (1 supra), a two Judge Bench of the Apex Court held that cognizance of offences under the Act triable by Special Court or Sessions Court without the case being committed to it by Magistrate would be illegal and trial has to be conducted only in the manner provided under section 193 Cr. P. C. Yet other two Judge bench of the Apex Court in M. A. Kuttappan s case (2 supra) also had expressed the same opinion. P. C. Yet other two Judge bench of the Apex Court in M. A. Kuttappan s case (2 supra) also had expressed the same opinion. ( 11 ) HOWEVER, the learned Additional Public prosecutor placed strong reliance on State of Madhya Pradesh s case (3 supra), wherein a two Judge Bench of the Apex Court while dealing with Section 14 of the Act held that where Sessions Judge had taken cognizance of an offence without the case being committed by the Magistrate, it is only a procedural lapse and High Court should not have set aside the conviction and remanded the matter back to the Magistrate, since the sessions Court is a Court of competent jurisdiction and the High Court ought to have decided the appeal on merits. The former two decisions referred to supra of co-equal benches of the Apex Court had taken a different view and hence, applying the rule of following the precedents, the latter decisions of the Apex Court are to be followed. ( 12 ) CHAPTER XXXV of the Code of Criminal procedure deals with irregular proceedings. Section 460 of the Said Code dealing with irregularities, which do not vitiate proceedings, reads as here under, if any Magistrate not empowered by law to do any of the following things, namely, (A) to issue a search-warrant under section 94; (b) to order, under Section 155, the police to investigate an offence; (c) to hold an inquest under Sec. 176 (d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction; (e) to take cognizance of an offence under Cl. (a) or Cl. (b) of sub-section (1) of Section 190; (f) to make over a case under sub-section (2) of Section 192 (g) to tender a pardon under Sec. 306; (h) to recall a case and try it himself under Section 410; or (i) to sell property under Section 458 or section 459,erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. ( 13 ) IT is pertinent to note that Section 193 cr. P. C. had not been specified in the said provision. ( 13 ) IT is pertinent to note that Section 193 cr. P. C. had not been specified in the said provision. Section 465 of the said Code dealing with finding or sentence when reversible by reason of error, omission or irregularity, reads as hereunder. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation, or revision on account of any error, omission, or irregularity in the complaint, summons warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in proceeding. ( 14 ) STRONG reliance was placed on sub-section (2) and the learned Additional Public prosecutor would contend that this technical flaw for the first time is being raised at the stage of appeal, and even otherwise, it has not occasioned any failure of justice and hence, it will not touch the jurisdiction as such, and it is only a curable irregularity. Strong reliance was placed on Willie (William) slaney s case (4 supra), wherein the Apex court held that, in adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early state. If it was not, and particularly where the accused is defended by counsel it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that"no serious defect in the mode of conducting acriminal trial can be justified or cured by the consent of the Advocate of the accused. But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel and even judges, are sometimes prone to argue and to act as if there were". ( 15 ) IT is pertinent to note that sub-section (1) of Section 465 of the Code commences with the words "subject to the provisions hereinbefore contained". Hence, section 465 of the Code may have to be read along with Section 460 of the Code and also section 193 of the Code. ( 15 ) IT is pertinent to note that sub-section (1) of Section 465 of the Code commences with the words "subject to the provisions hereinbefore contained". Hence, section 465 of the Code may have to be read along with Section 460 of the Code and also section 193 of the Code. ( 16 ) HENCE, the view expressed in Willie (William) Slaney s case (4 supra), which is in relation to a charge and prejudice being caused in relation thereof, may not be applicable to the present facts. ( 17 ) IN the light of the binding latter decisions referred to supra, this Court is of the considered opinion that the trial would be definitely vitiated in the absence of committal to a Court of Sessions or to a Special Court, as the case may be, and hence, the appellant-accused is entitled for an acquittal. ( 18 ) IN the light of the view expressed by this Court, the other factual and evidentiary details need not be discussed and accordingly, an order of acquittal is recorded, and the appeal is accordingly allowed. The fine amount, if any, paid shall be refunded to the appellant-accused.