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2005 DIGILAW 2464 (RAJ)

Buddha Ram v. State of Rajasthan

2005-09-15

R.S.CHAUHAN

body2005
Judgment R.S. Chauhan, J.-The petitioner has challenged the orders dated 14.08.2001 and dated 27.08.2001 passed by the Additional Civil Judge (JD) and Judicial Magistrate (FC) No. 7, Jodhpur. By the former order, the learned Magistrate had refused to take cognizance on a complaint filed by the petitioner for offences under Sections 323, 341, 342, 351 and 365 IPC (for short “IPC” hereinafter) and for offence under section 3 of the Scheduled Caste and Scheduled Tribes (Preventions of Atrocities) Act, 1985 (for short “SC/ST Act”). By the latter order, he refused to review the order dated 14.08.2001. 2. According to the petitioner on 13.07.2001, he had filed a criminal complaint before the magistrate against the staff of Police Station, Dangiawas, Jodhpur with regard to atrocities committed by the policemen Kan Singh, Mahaveer Singh, Prakash, Parmeshwar and Lal (sic) under Sections 323, 341, 342, 351 and 365 IPC and under Section 3 of the SC/ST Act. 3. After keeping the said complaint pending, finally on 14.08.2001, the learned Magistrate came to the conclusion that since offences under the SC/ST Act were alleged, therefore, he did not have the jurisdiction in the matter. According to the learned Magistrate, the jurisdiction for taking cognizance lay with the Special Court. Therefore, the complaint was returned back to the petitioner. However, when the petitioner approached the Special Court, the said Court refused to accept the complaint and verbally directed the petitioner to move the complaint again before the learned Magistrate. Consequently, the petitioner again submitted the complaint alongwith an application under Sections 177, 178, 190, 200 and 202 CrPC. But, vide order dated 27.08.2001, the learned Magistrate was pleased to dismiss the application on the ground that the Court does not have the power of review. 4. On the enactment of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the State Government was empowered to specify for each district a Court of Session as a Special Court to try the offences under the Act after concurrence with the Chief Justice and by issuance of notification in the Official Gazette. The purpose of establishing the Special Court was to provide speedy trial to the accused and to give speedy justice to the victims of such atrocities. The purpose of establishing the Special Court was to provide speedy trial to the accused and to give speedy justice to the victims of such atrocities. However, with the establishment of such Special Courts, a legal issue arose whether after establishment of such Special Court, the Judicial Magistrates have the power to take cognizance of the offences alleged to have been committed in the area under the said Court or not? The said issue had taxed the judicial imagination for almost a decade. The issue was finally resolved by a Full Bench of this Honble Court in the case of Bhura Lal & Ors. vs. State & Ors., 1999 (2) RLW 897 (Raj).The Honble Full Bench held that the Magistrate having jurisdiction over the area in which offences under SC/ST Act are alleged to be committed, are empowered to deal with the cases under Section 190 of the Code as well as the jurisdiction to deal with the cases during the “inquiry” i.e., pre-trial stages including exercise of power under Section 156(3) of the Code and thereafter are required to transmit all such cases to the Special Court situated within that jurisdiction. Thus, according to the Honble Full Bench, the Magistrate should have exercised his powers either under Section 156 (3) CrPC or under Section 190 CrPC. Surprisingly, the said Judgment was delivered in the year 1999 and the impugned orders have been passed in the year 2001, but the said Judgment seems to have escaped the notice of the learned Magistrate. A similar view has also been expressed by the Honble Supreme Court in Moly & Anr. vs. State of Kerala, 2004 (2) Criminal Court Cases 514 (SC), wherein their Lordships of the Honble Supreme Court have also held that Special Court has no power to take cognizance of complaint unless it is committed to it by a competent Magistrate. 5. In the light of the pronouncements of the Honble High Court and the Honble Supreme Court, the impugned orders passed by the learned Magistrate are legally unsustainable. Hence, the case is remanded back to the Additional Civil Judge (JD) and Judicial Magistrate, (FC) No. 7 Jodhpur to examine the contents of the complaint filed by the petitioner and to pass the necessary orders in accordance with law. 6. The petition is disposed of accordingly.