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2012 DIGILAW 878 (HP)

Ajay Kumar v. State Of Himachal Pradesh

2012-11-23

V.K.AHUJA

body2012
JUDGMENT : V.K. Ahuja, J. (Oral) Petitioners have filed the present petition under Section 482 of the Cr.P.C. against the order, dated 23.2.2012, passed by the learned Judicial Magistrate Ist Class, Court No.IV, Shimla, vide which he had committed the case to the learned Special Judge/Sessions Judge, Shimla. 2. A notice of the petition was issued to the respondents. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. Brief facts leading to the filing of the present petition are that initially a case was registered under Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, hereafter referred to as the SC&ST Act, against the petitioners on a complaint filed by respondent No.2. The case was investigated by the Deputy Superintendent of Police under the provisions of the SC&ST Act as well as other provisions, and finally challan was not filed under the SC&ST Act, but it was filed under Section 7(d) of the Protection of Civil Rights Act, 1955. Subsequently, charges were also framed by the learned Judicial Magistrate for offences punishable under Sections 341, 323 and 506 IPC and Section 7(d) of the Protection of Civil Rights Act, 1955. The statement of the complaint was recorded by the learned Judicial Magistrate and on perusal of the same, it was observed by the learned trial Court that the complainant in the statement has reiterated that offending words (..) were used against her by the accused. Accordingly, the learned Judicial Magistrate was of the opinion that once the provisions of Section 3 (1)(x) of the SC&ST Act were attracted, the case was exclusively triable by the learned Special Judge/Sessions Judge and, therefore, he committed the case to the learned Special Judge/Sessions Judge, Shimla. 5. The submissions made by the learned counsel for the petitioners were that the case had already been investigated on the basis of evidence and it was found that the offence under the SC&ST Act was not made out and accordingly, the impugned order passed by the learned Judicial Magistrate was not sustainable in the eye of law. 6. 5. The submissions made by the learned counsel for the petitioners were that the case had already been investigated on the basis of evidence and it was found that the offence under the SC&ST Act was not made out and accordingly, the impugned order passed by the learned Judicial Magistrate was not sustainable in the eye of law. 6. According to law, once a case is pending before a learned Judicial Magistrate and he, prima facie, forms an opinion on the basis of the evidence including the statement of the complainant that the offence in question is triable by the learned Sessions Judge/Special Judge, he has no jurisdiction to consider as to whether the evidence is sufficient or not for re-framing of charges or whether the evidence is sufficient to proceed with the case or not. Once the Magistrate forms an opinion on the basis of the evidence led that the case was triable by the learned Special Judge, the only course open to the learned Magistrate was to commit the case to the Special Judge/Sessions Judge and it is only the said court which has to consider as to whether the charge has to be framed under the SC&ST Act or not or as to whether the case should be tried by the learned Magistrate for the offences for which the petitioner has already been charge-sheeted. Thus, the course adopted by the learned Magistrate was correct and as such the case has to go to the learned Sessions Judge/Special Judge who has to consider the evidence led and also the fact whether the charge should be re-framed or not. In case, the learned Sessions Judge holds that the proceedings are to continue under the same Sections and no charge is to be framed afresh, he will remit the case to the learned Chief Judicial Magistrate according to law. 7. In view of the above discussion, there is no merit in the petition filed by the petitioner. The case shall go back to the learned Special Judge/Sessions Judge, Shimla, who shall consider the case in view of the observations made above. 7. In view of the above discussion, there is no merit in the petition filed by the petitioner. The case shall go back to the learned Special Judge/Sessions Judge, Shimla, who shall consider the case in view of the observations made above. Liberty is given to the petitioners to argue as to whether the offence is, prima facie, made out under the provisions of the SC&ST Act or not and the learned Special Judge/Sessions Judge shall pass appropriate orders according to law on perusal of the record and the submissions made by the learned counsel for the parties. Not only this, the complainant/State has to be heard at the time of considering this question by the learned Special Judge/Sessions Judge. 8. The petition stands disposed of accordingly, so also the pending applications, if any. The parties through their counsel are directed to appear before the learned Special Judge/Sessions Judge, Shimla on 17.12.2012. The Registry is directed to send the records of the case to the concerned court forthwith so as to reach there well before the date fixed.