JUDGMENT : Aditya Kumar Trivedi, J. As none appears on behalf of appellants on account thereof, Sri Arun Kumar Tripathi, learned counsel has been requested to assist the court as an Amicus Curiae. 2. Appellants have assailed the judgment of conviction and sentence dated 20.02.2002 passed by Special Judge, SC/ST (POA) Act, Aurangabad in G.R. No.1443 of 1998 / 25 of 1998 arising out of Obra P.S. Case No. 162 of 1998, Trial No.25 of 1998 whereby and whereunder they have been found guilty for an offence punishable under Section 3(i)(x) of SC/ST (POA) Act and sentenced to undergo R.I. for one year, under Section 323 of the IPC and directed to undergo R.I. for six months, 341 IPC and directed to undergo R.I. for one month with a further direction to run the sentences concurrently. 3. Mithilesh Ram (PW.5) had filed written report on 24.07.1998 having an allegation that on the same day at about 06:00 P.M. while he was ploughing his field, his co-villager Tej Narain Singh @ Jhannu Singh, son of late Rajgir Singh came and directed to transplant seedlings which was refused by him on account of his pre-engagement. The same was resisted by aforesaid Tej Narain Singh @ Jhannu Singh whereupon his brothers Mannu Singh and Ramesh Singh came. Jhannu Singh threw him on ground and his brothers began to assault from Lathi portion of Khanti over his head causing injury. Blood also oozen out. They have also assaulted with fist and slap. 4. On the basis of the aforesaid written report Obra P.S. Case No. 162 of 1998 was registered under Sections 341,323 IPC as well as 3/4 of SC/ST (POA) Act, however charge sheet was submitted under Section 341, 323, 307 IPC and ¾ of SC/ST (POA) Act. The learned A.C.J.M. vide order dated 14.10.1998 took cognizance of an offence punishable under Section aforesaid Sections and further transferred the case to Special Judge, SC/ST (POA) Act for disposal in accordance with law whereupon trial was conducted before the learned Special Judge and after concluding the same, met with the verdict, subject matter of instant appeal. 5. The learned A.C.J.M. vide order dated 14.10.1998 took cognizance of an offence punishable under Section aforesaid Sections and further transferred the case to Special Judge, SC/ST (POA) Act for disposal in accordance with law whereupon trial was conducted before the learned Special Judge and after concluding the same, met with the verdict, subject matter of instant appeal. 5. Because of the fact that occurrence is of the year 1998 on account thereof, the amendment having brought up since 26.01.2016 will not be applicable and in likewise manner, the vesting of power to the subordinate police officials to investigate the case which subsequently been entrusted to by notification of the year 2002 under the aforesaid eventuality, when the record has been minutely gone through, it is evident that two kinds of basic infirmities persist. The first one relating to identity of the Investigating Officer and for that, Rule-7 is quoted below: “7. Investigating Officer:-(1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. (2) The investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Direct or General of Police of the State Government. (3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution the officer in-charge of Prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the investigating officer.” 6. From the column of the formal FIR, it is evident that A.S.I., Praveen Kumar Singh was entrusted with the investigation who had submitted charge sheet. So, it is abundantly clear that on the date of commencement of the Investigating Officer the Investigating Officer who had conducted investigation was not at all competent enough to investigate the case. 7. The second one relates with competency of the court. So, it is abundantly clear that on the date of commencement of the Investigating Officer the Investigating Officer who had conducted investigation was not at all competent enough to investigate the case. 7. The second one relates with competency of the court. Before entering into the aforesaid controversial sphere it looks pertinent to identify the definition of special court as prescribed under Section 2(d): “2(d) “Special Court” means a Court of Session specified as a Special Court in section 14;” That means to say the Special Court having constituted in terms of Section 14 is to be a court of Session and in likewise manner is expected to discharge its function as a court of Session. 8. Though after 2016 amendment, the special court or the exclusive special court have been vested with the power of taking cognizance but before that, the aforesaid privilege was not at all granted in favour of special court so constituted under Section 14 of the Act. That being so, the special court being court of Session was not at all competent to entertain the proceeding on its own unless and until cases having been committed in accordance with Section 209 of the Cr.P.C. and further, applicability of Section 193 Cr.P.C. then thereafter. The aforesaid controversy had at an earlier occasion came up before this Court in Jhagru Mahto Vs. The State of Bihar & Ors. reported in 1992 BBCJ 675 and after discussing the relevant provisions in para-14, it has been held: “14. It cannot be said in view of the express bar contained in section 193 of the Code of Criminal Procedure, that power to try a case includes power to take cognizance inasmuch as section (2) (g) of the Code of Criminal procedure defines ‘enquiry’ to mean an enquiry other than a trial conducted under the code by a Magistrate or a court. An enquiry in terms of the provisions of the Code of Criminal procedure having excluded a trial, the same has to be conducted by a Magistrate only, as the special court it is not empowered to make an enquiry in his regard. Section 6 of the Code of Criminal Procedure inter alia prescribes the court of Sessions as one of the classes of Criminal Courts. In this case however special courts have been constituted under the said Act. Section 6 of the Code of Criminal Procedure inter alia prescribes the court of Sessions as one of the classes of Criminal Courts. In this case however special courts have been constituted under the said Act. Section 26 of the Code of Criminal Procedure reads as follows:- Subject to the other provisions of this code- (a) any offence under the Indian Penal Code may be tried by- (i). the High Court, or (ii). the court of sessions or (iii). any other court by which such offence is shown in the first schedule to be triable, (b) any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court and no court is mentioned may be tried by- (i). The High Court, or (ii). any other court by which such offence is shown in the first schedule to be triable. In para-18 the same has further been reiterated as follows: “18. It is, therefore, clear that as no power has been conferred upon the special court to take cognizance of an offence in terms of an express provision under the said Act, the impugned order cannot be sustained.” 9. Subsequently thereof, the controversy up to Hon’ble Apex Court in Gangula Ashok and another v. State of Andhra Pradesh reported in 2000 (1) East Cr C 344 (SC) : AIR 2000 SC 740 wherein it has been held: “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 straightway be filed 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.” 10. 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.” 10. From the order dated 14.10.1998, it is evident that though cognizance of an offence was taken up by the learned A.C.J.M. but the case was transferred to the Special Judge without following the procedure so prescribed under Section 209 of the Cr.P.C. That being so, for want of aforesaid deficiency the special court was not at all competent enough to take cognizance in terms of Section 193 Cr.P.C. whereupon trial vitiates. Apart from this, the written report did not satisfy the ingredients of Section 3(i)(x) of the SC/ST (POA) Act, 1989, though during course of evidence PW.5 had tried to fulfill the aforesaid lacuna which appears to be material development not at all substantiated by other PWs that means to say PW.1, PW.2, PW.3, PW.4 who are non-else than own family members. The aforesaid infirmities persisting on the record is not at all found curable in terms of Section 465 of the Cr.P.C. in the facts and circumstances of the case. At a glance it happens to be a fit case for remand but considering the nature of the allegation in consonance with the pendency of instant appeal since 2002 coupled with the fact that the occurrence relates of the year 1998, it will not be wise on that very score. 11. Accordingly, the judgment of conviction and sentence impugned is set aside. Appeal is allowed. Appellants are on bail, hence are discharged from its liability. First page and last page of the judgment be handed over to the learned Amicus Curiae for the needful.