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2017 DIGILAW 2017 (JHR)

Dhiraj Kumar v. State of Jharkhand

2017-11-23

B.B.MANGALMURTI

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JUDGMENT : B.B. MANGALMURTI, J. Heard counsel for the parties. 2. Instant application has been filed for quashing the order taking cognizance dated 08.10.2009 by which cognizance under Sections 376, 417 and 506 of the Indian Penal Code and 3(i)(x)(xii) and 2(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 has been taken by Chief Judicial Magistrate, Garhwa in Garhwa P.S. Case No. 141 of 2009, corresponding to G.R. Case No. 541 of 2009 giving rise to the S.T. Case No. 344 of 2009. 3. The short fact of the case is that initially a complaint petition was filed by complainant Galoria Dung Dung before the court of Chief Judicial Magistrate, Garhwa which was registered as Complaint Case No. 402 of 2009 and the same was transmitted under Section 156(3) of the Cr.P.C. and later on it was registered as Garhwa P.S. Case No. 141 of 2009 under Sections 376, 417 and 506 of the Indian Penal Code and 3(i)(x)(xii) and 2(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989. After investigation, charge-sheet was submitted and the court of Chief Judicial Magistrate, Garhwa took cognizance of the offence on 08.10.2009 under Sections 376, 417 and 506 of the Indian Penal Code and 3(i)(x)(xii) and 2(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 and kept the file for commitment which gave rise to ST case no. 344 of 2009 which is pending before the Special Court. 4. Mr. Mahesh Tiwari, learned counsel raised a technical point that Magistrate has no authority to take cognizance under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 as the Special Court which has been constituted for this purpose is only competent to take cognizance in the matter. He further submitted that in this present case the court of Chief Judicial Magistrate, Garhwa vide order dated 08.10.2009 not only took cognizance under the Sections of Indian Penal Code but also took cognizance under Sections 3(i)(x)(xii) and 2(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 against the accused persons and committed the case to the court of Sessions for trial. He relied on a decision in the case of Moly v. State of Kerala reported in 2004 Cri. He relied on a decision in the case of Moly v. State of Kerala reported in 2004 Cri. L.J. 1812 (SC) in which the Hon'ble Supreme Court in paragraph 8 and 9 has held as under:— 8. Section 14 of the Act says 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 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.” 9. So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word “trial” is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word “inquiry” is defined in Section 2(g) of the Code as “every inquiry, other than a trial, conducted under this Code by a Magistrate or Court”. So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as a Special Court is to ensure speed for such trial. “Special Court” is defined in the Act as “a Court of Session specified as a Special Court in Section 14” (vide Section 2(1)(d). 5. He further submitted that in view of above proposition the order taking cognizance passed by the court of Chief Judicial Magistrate, Garhwa is bad in law since he had no jurisdiction to take cognizance. 6. Mr. Rahul Dev appearing on behalf of opposite party no. 2 submitted that the order taking cognizance is not exclusive under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 rather cognizance was also taken under the Indian Penal Code. He further submitted that thereafter the case was committed to the court of Sessions for trial therefore, trial would not vitiate as it was committed to the Special Court. He further submitted that the legislature has provided for constitution of Special Court for the purpose of trial of the offences under this Act. 7. Also heard learned A.P.P. for the State. 8. He further submitted that the legislature has provided for constitution of Special Court for the purpose of trial of the offences under this Act. 7. Also heard learned A.P.P. for the State. 8. Considering the above pleadings of the parties and on perusal of the judgment of the Hon'ble Supreme Court in Moly v. State of Kerala (Supra) there is no ambiguity that only the Special Court constituted for the purpose of this Act is competent to take cognizance under the Sections of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 and in the present case the court of Chief Judicial Magistrate, Garhwa vide order dated 08.10.2009 took cognizance under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 also which is not sustainable in law. 9. Therefore, in the above circumstances, order dated 08.10.2009 passed by the court of Chief Judicial Magistrate, Garhwa by which cognizance under Sections 376, 417 and 506 of the Indian Penal Code and 3(i)(x)(xii) and 2(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 have been taken is set aside. 10. In the result, instant application is allowed.