Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 397 (MP)

Gajendra Singh v. State of M. P.

2008-03-11

A.P.SHRIVASTAVA

body2008
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence passed by 2nd Additional Sessions Judge, Dabra district Gwalior in Special Case No. 15/95 dated 24.12.1998. The appellant has been convicted under section 3 (1) (x) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo R.I. for six months and fine of Rs. 500/- with default stipulation. He has also been convicted under section 323 IPC and sentenced to undergo RI for 3 months. Both the sentences shall run concurrently. 2. As per the prosecution story on 31.8.1995 at about 8:00 in the night at village Badera Bujurg there was some fair of Baba, complainant Bhagwantibai (PW 1) was going along with a steel pot and when she was returning to her house on the way the appellant met complainant and abused her in filthy language "Chamariya". He gave blow by kick to her resulting in which she fell down. When her son Kubersingh also came to rescue he was also beaten by the appellant. Then Netram and Hardyal also came to intervene in the matter. Lachhobai (PW 2) and Sajjobai (PW 3) saw the incident who were also present on the spot. Since there was night the report could not be lodged on the same day, the report was lodged on the next day i.e. on 1.9.1995 at the concerned police station. After completing investigation, the charge sheet was filed and charges under section 323 IPC and section 3 (1) (x) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 framed against the appellant. The trial Court after conclusion of trial, convicted and sentenced the appellant as stated above. 3. During the course of arguments, it is submitted by the learned counsel for the appellant that in this case a compromise has been recorded for offence committed under section 323 IPC. Therefore, only conviction under section 3 (l) (x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act is to be considered. He raised objection that the charge was framed by the Special Court, Gwalior but it was decided by the Additional Sessions Judge, Dabra. Further, no committal proceeding has been done in the case and charge sheet was filed directly before the Court. He raised objection that the charge was framed by the Special Court, Gwalior but it was decided by the Additional Sessions Judge, Dabra. Further, no committal proceeding has been done in the case and charge sheet was filed directly before the Court. There is also non-compliance of the provision of section 157 (2) of CrPC because the FIR is ante-timed and the investigating officer who recorded the FIR was not examined by the prosecution. Lastly, it is also submitted that apart from the above objection the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. The statement given by the complainant Bhagwati Bai (PW 1) was not corroborated by Lachhobai (PW 2) and Sajjobai (PW 3). Netram (PW 5) has also not supported the prosecution case and he was declared hostile. The son of the complainant Kuber Singh, was present at the time of occurrence but he was not examined by the prosecution. 4. Counsel for respondent State submitted that from the testimony of the complainant (PW 1) the offence is proved against the appellant and trial Court has rightly convicted the appellant. 5. Regarding legal objection taken by the appellant that the case is not tried by the competent Court under the SC and ST Act, it is evident from perusal of the provision under section 14 of Scheduled Castes &' Scheduled Tribes (Prevention of Atrocities) Act, 1989 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 a 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. During the course of argument, the counsel for the appellant failed to give explanation with regard to notification issued by the State Government by which the Court of Session of each district is notified as a Special Court to try offences under the Act and the area for which the Court of Session shall exercise jurisdiction. Further he also submitted that the Session Court could not have taken cognizance without committal proceedings in this regard, counsel for the appellant relied on a decision of the apex Court in Gargula Ashok and another v. State of A.P. [2000 SCC (Criminal) 488]. 6. Further he also submitted that the Session Court could not have taken cognizance without committal proceedings in this regard, counsel for the appellant relied on a decision of the apex Court in Gargula Ashok and another v. State of A.P. [2000 SCC (Criminal) 488]. 6. It is a settled view that at present for the special cases under Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 committal proceeding is must and the Special Court cannot take cognizance directly from the charge sheet filed by the police. 7. In this case, this objection was not taken by the appellant before the trial Court and at the final stage of appeal for the first time this argument was raised. In this regard, in the case of State of Madhya Pradesh v. Bhooraji and others [200 1 (2) JLJ 321 = 2001 (7) SCC 679 ] the Hon'ble Supreme Court while discussing effect of not following procedure is only irregularity covered by section 465 (1) CrPC and the remedial measures are possible where objection is taken at the earliest occasion. He admits that no such objection was raised before the trial Court. The Court also observed that competence will remain unaffected by procedural lapse. No effect of statutory bar to take cognizance of certain cases on the question whether the Court was of competent jurisdiction or not. 8. In this case, the case of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 was filed without committal proceedings. The High Court quashed the entire trial proceeding and directed the trial Court for de novo trial by initiating committal proceedings. It was held by the apex Court that a "failure of justice" had occasioned on account of such irregularity in the trial proceedings which accused failed to show and the order of High Court was quashed by the Supreme Court with the direction that the High Court should have dealt with the appeal on merits and on the basis of evidence already on record and case was remitted to High Court for disposal according to law. 9. Therefore, in view of above legal factual aspect and with a view that before the trial Court no such objection has been raised by the appellant during the final submission before that Court, this objection cannot be acceptable at this stage. 10. 9. Therefore, in view of above legal factual aspect and with a view that before the trial Court no such objection has been raised by the appellant during the final submission before that Court, this objection cannot be acceptable at this stage. 10. Bhagwatibai (PW 1), in her statement, deposed that when she was returning to her house and keeping a steel pot in her hand, the appellant abused in filthy language "Chamariya" and the accused also inflicted injuries on her waist by his leg by which she fell down and she sustained injuries. When her son Kuber Singh came there, the appellant also inflicted injury to him by lathi. 11. Lachhobai (PW 2) stated that incident took place at about 5 in the evening. Although, she supported version of Bhagwatibai (PW 1) to some extent, but she was declared hostile by the prosecution. Similarly, Sajjobai (PW 3) had denied that no incident took place before her and she was also declared hostile by the prosecution. Further Netram (PW 5) also has supported the version of Bhagwatibai (PW 1) and he was declared hostile. Son of the complainant was present at the time of incident but he was not examined by the prosecution and no reason was assigned. Therefore, the oral testimony of the complainant does not inspire confidence to sustain conviction under section 3 (I) (x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 as recorded by the trial Court. It appears that the prosecution has failed to establish guilt against the accused. Therefore, conviction and sentence under section 3 (1) (x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside. Bail bond of the appellant shall stand discharged. 12. Accordingly, the appeal is allowed to the extent above.