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TMI Blog1999 (4) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... We will be dealing with that case i.e. Crl.R.C. No. 1084 of 1996 separately. The questions referred by the learned Sessions Judge in Crl.R.C. No. 905 of 1996 are: (1) Whether the Special Court constituted under Section 14 of the Central Act XXXIII of 1989 is empowered and competent to take cognizance of and to try, any offence other than an offence under the said Act with which the accused may, under the Criminal Procedure Code, be charged at the same trial. (2) Whether the Hon'ble High Court itself had the power and is competent to vest and if so, the Circular order in Roc. No. 2582/SO/91, dated 12-2-1992 of Hon'ble High Court, issued in exercise of its powers under Section 407 of the Criminal Procedure Code vests such non-territorial jurisdiction upon such Special Court as stated in High Court's RC. No. 2137/E-1/94, dt. 4-9-1996; (3) If the answer to Question Nos. 1 and 2 is 'no' what is the procedure to be adopted in respect of those cases pending trial (which were received by transfer from Special Court, Mahabubnagar) and those charge sheets pending consideration before this Court involving commission of an offence under both the Act and IPC (Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following the procedure as laid down under Cr.P.C. (2) Whether the direction in the Notification No. 2 in G.O.Ms. No. 10, Social Welfare (H) Department, dated: 7-2-1996 to the Presiding Officers of Special Courts to receive, try and dispose of the cases filed under the Act will vest the Special Court with the power to take cognizance of the offences under the Act directly without being committed under Section 193 Cr.P.C? (3) Whether the provisions of Clause (v) of Sub-section (2) of Section 3 of the Act are attracted in the case of an offence under Section 302 I.P.C. which is punishable with death or imprisonment for life? (4) Whether the provisions of Clause (v) of Sub-section (2) of Section 3 of the Act are attracted where an offence is committed against a person or property without knowing that such person is a member of the Scheduled Caste or Scheduled Tribe or such a property belongs to such a member, but comes to light subsequent to the commission of the offence that such person is a member of the Scheduled Caste or Scheduled Tribe? (5) Whether the Special Court has got jurisdiction to try an offender who is a member of a Scheduled Caste or Scheduled Tribe when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law . 9. Section 6 of the Act makes the provisions of the IPC contained in Sections 34, 149, Chapter III (Punishments), Chapter IV (General Exceptions), Chapter V (Abetment), Chapter V-A (Criminal Conspiracy) and Chapter XXIII (Attempts to commit offences) are made applicable so far as may be, for the purposes of the Act. It may be noted that the procedure to be followed by the Special Court in regard to the trial of offences or in regard to other stages preceding the trial are not set out in the Act. 10. As per the provisions of Section 14 of the Act, and after obtaining the consent of the Hon'ble Chief Justice of this Court, the Government issued G.O.Ms. No. 665 Home (Courts-A) Department, dated 14-11-1991, which reads as under: NOTIFICATION In exercise of the powers conferred under Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act No. 33 of 1989), and in partial modification of the notification issued in G.O.Ms. No. 12, Social ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred under Section 407, Cr.P.C., 1973 be and hereby permits all the Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges of the concerned districts mentioned in column No. 3 of the Notification enclosed herewith straightaway to transfer the cases filed under SCs and STs (Prevention of Atrocities) Act, 1989 including those cases filed under IPC which are punishable with imprisonment for 10 years or more in which SCs STs are complainants and the accused do not belong to SCs. or STs. to the concerned Special Courts for trial of offences under SCs and STs (Prevention of Atrocities) Act, 1989 for disposal according to law. The Special Judges for trial of offences under SCs. and STs (Prevention of Atrocities) Act, 1989 at Guntur, Chittoor and Mahabubnagar are hereby directed to receive all the cases that are transferred to them by the said Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges mentioned supra and dispose according to law . 11. Thereafter, basing upon the judgment of the Kerala High Court, the High Court issued a Circular Roc. No. 1240/SO/93 dated 30-9-1993 on administrative side and informed all the Special Courts to tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court at Mahabubnagar, which had earlier jurisdiction over the Districts of Khammam and Warangal, transferred the pending charge-sheets relating to those districts to the Courts of Addl. Sessions Judges of Khammam and Warangal which have been specified as Special Courts for those districts and empowered to try the cases under the Act as per G.O.Ms. No. 10, dated 7-2-1996. Those charge-sheets were returned by the Addl. District Judge/ Special Court, Khammam with an endorsement that the concerned Police Officers should explain as to how the Special Court can try the offences under Indian Penal Code. Thereafter, the S.P., Khammam corresponded with the Registrar of High Court who in turn called for a report as to why the charge-sheets were returned in spite of earlier circulars. Then, the A.D.J., Khammam thought it fit to make the present reference. 15. In order to appreciate the issue involved in this case, it is necessary to go through some of the provisions of the Code of Criminal Procedure. The most important provision is Section 4. As per Sub-section (1) of Section 4, all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the First Schedule to be triable . 18. On referring to these provisions of Cr.P.C. Sreedharan, J. of Kerala High Court in Re: Director General of Prosecution 1993 (1) ALT (Cri) 52 :1993 Cri.L.J. 760, rightly observed in para 6 as follows: The combined effect of the provisions of the Code referred to above is that all offences under the Indian Penal Code are to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. Insofar as offences under laws other than I.P.C. are concerned, the provisions of the Code apply in their full force subject to the specific or contrary provision made by the law under which those offences are to be investigated or tried. Where an enactment provides special procedure only for some matters, such procedure must govern those matters and in regard to other matters on which that enactment is silent, the provisions of the Code must be applied . 19. Referring to Sections 4(2) and 5 of Cr.P.C., the Supreme Court in Directorate of Enforcement v. Deepak Mahajan, 1994CriLJ2269 , summed up the legal position as follows: To sum up Section 4 is comprehensive and that Section 5 is not derogatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Magistrate only. The charge-sheet cannot be filed in the Court of Sessions unless and otherwise it is provided so by the special statute. There is no provision in the Act enabling the Special Court to directly take cognizance and proceed further. After filing the charge-sheet in the Court of the Magistrate, the Magistrate has to satisfy himself that the case is triable by him as contemplated under the Code and he is competent by law to try such offence with reference to the First Schedule of the Code. If the Magistrate finds that the trial of offence does not fall within the purview of his powers then he has to commit the case to the Court of Session. Section 193, as already noticed, specifically lays down that the Court of Session cannot take cognizance of the offence as a Court of original jurisdiction. The Court of Session can take cognizance only upon the case being committed to it. 23. The question is whether there is anything in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which strikes a different note and which empowers the Court of Session, constituted as Special Court to directly take cognizance as a Court of original jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is filed in that Court. We do not agree with the contention advanced by the learned Counsel Mr. Tarakam that the said Act excludes committal procedure and the Special Court discharges the powers of Magistrate, Sessions Judge and Sessions Judge all combined. 24. We shall now refer to the reasoning of the Kerala High Court in the Division Bench case In Re. Director General of Prosecution (supra) and the Full Bench decision in Hareendran v. Sarada 1996 (1) ALT (Cri.) 162 The Division Bench of Kerala High Court after referring to the observations in the decision of A.R. Antulay v. S.R. Nayak (supra) observed that the word 'try' used in Section 14 of the Act is wide enough not only to confer the power of actual trial of offences, but also to make every kind of enquiry as a Criminal Court of original jurisdiction as per the provisions of the Code. The learned Judges then explained that the Special Court can take cognizance of an offence for trial in one of the three modes contemplated by Section 193, Cr.P,C. excluding the remaining mode of taking cognizance i.e. upon commitment by a Magistrate. The same reasoning was applied to the related offences falling under I.P.C. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nizance of the case on a complaint alleging an offence under Section 3(1)(i) of the Act. The complaint ought to have been returned for presentation before the Special Court. The following observations of the Full Bench are quoted: As the Sessions Court is specified as Special Court it can take cognizance of the offences and as there is nothing indicative in the Act to hold that the Special Court gets jurisdiction to try the case only on committal by the Magistrate, it is not possible to hold that Court can take cognizance of an offence for trial only on proper committal by the Magistrate. As Section 14 of the Act specifically provides for speedy trial and as the Act itself has been enacted to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes by providing Special Courts for trial of such offences and as the Act nowhere hints committal proceedings, Section 193 of the Cr.P.C. cannot have any application . 28. We find it difficult to agree with the reasoning of the Kerala High Court in the two decisions referred to above. As already observed by us, in the absence of a particular procedure prescribed by the said Act as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y having regard to the context, be wide enough and include other steps preceding the trial. But there is nothing in the language of Section 14 or any other provisions of the Act which warrant such wide interpretation. As already noted, whenever powers of Court of original jurisdiction were intended to be conferred on the Court of Session constituted as Special Court under various central enactments, a specific provision to that effect is made including dispensing with the committal procedure. But there is no such provision in S.C. S.T. (Prevention of Atrocities) Act. In view of this omission, the bar under Section 193, Cr.P.C. becomes applicable to the Special Court under the said Act by virtue of the language contained in Section 4(2), Cr.P.C. 31. The Kerala High Court as well as learned single Judge of this Court (Rajagopala Reddy, J.)placed heavy reliance on the following passage in the judgment of the Supreme Court in Antulay's case: .....The net outcome of this position is that a new Court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific question brought before it as Court of original criminal juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is armed with power to take cognizance of offences but that it is denied the power to take cognizance on commitment by the Magistrate. This excludes the mode of taking cognizance under Section 193. 34. The Supreme Court repelled the argument that the Special Judge should answer the description of a Magistrate before it takes cognizance in any of the other three modes invested by Section 190. The Supreme Court pointed out If Section 190 cannot be availed, we fail to see how a Special Judge would be entitled to take cognizance on a Police report. If Section 190 is not attracted, the three modalities of taking cognizance of offences would not be available. One cannot pick and choose as it suits one's convenience. Either all the three modalities are available or none and Section 8 (1) which confers power of taking cognizance does not show any preference . 35. The Supreme Court then proceeded to discuss as to what exactly is the position of Special Judge and whether it was necessary to assimilate him with a Magistrate or a Sessions Court. This part of the discussion is contained in paragraph 27 from which the passage above extracted occurs. 36. Following observations of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahto v. State of Bihar 1993 (1) Crimes 643 and Punjab and Haryana High Court in Jyoti Arora v. State of Haryana 1998 (2) Cri.L.R. 73 also took the view that the Sessions Court constituted as Special Court cannot take cognizance of offences under the Act, unless the case has been committed to him by a Magistrate. The provisions of Section 193, Cr.P.C. read with Section 4(2) of the Code were relied upon. We would respectfully express our concurrence with the view taken by Patna, Madhya Pradesh, Allahabad, Punjab Haryana High Courts. 39. One important reason which persuaded us to take the view that the Special Court cannot have original jurisdiction and take direct cognizance of the offence without an order of committal is that the Parliament wherever it felt necessary incorporated specific provisions in various enactments viz., Section 5 of the Prevention of Corruption Act, Section 12-AA of the Essential Commodities Act and Section 36-A of Narcotic Drugs and Psychotropic Substances Act, 1985. Why it has been omitted in the present Act, we cannot speculate. But there seems to be lacuna and it is for the Legislature to take care of the same. 40. The argument that the object of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions Court, and the provisions of Cr.P.C. such as 8, 220, 223 etc., do not govern the trials in a special Court then I.P.C. offences cannot be tried at all along with the offences under the Act. This will lead to an anomalous and unintended results. 45. Lastly, before concluding our discussion on this aspect, we may refer to the judgment of the Supreme Court in Jagadish Prasad Gupta v. State of Rajasthan and Ors. 1995 Suppl. (3) SCC 386 which was relied upon by Hanumanthu, J. in his order of reference. There the question arose whether the transfer of the case from the Court of Judicial Magistrate for CBI cases to the Special Court constituted under the Essential Commodities Act is proper. The accused was charged under Section 406, IPC and for some other offences under the Essential Commodities Act. Sub-section (2) of Section 12-AA enables the Special Court to try the offence other than the offence under the Essential Commodities Act with which the accused was charged at the same trial subject to the proviso that such offence is triable in a summary way. As the offence under Section 406, IPC cannot be tried summarily in view of Section 260 of Cr.P.C., the Supreme Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code covers cases where particular act constituting offence falling within two or more separate definitions of any law by which the offences are defined and punished. When a single act constitutes an offence punishable under two different laws, it comes squarely within the Sub-section (3) of Section 220 of the Code. As per Sub-section (4), if several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined and for any offence constituted by any one or more of such acts. So, if various acts alleged against an accused constitute an offence under the Act and combination of those acts, constitute an offence under Indian Penal Code as well, the accused can be tried for both in the same proceeding. Thus, if the acts alleged against the accused constitute atrocities as defined under Section 3 of the Act and also an offence under the Indian Penal Code as well, accused can be tried for both in the same proceeding. Further, there is no bar in the Act for a Special Court trying the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those cases filed under IPC which are punishable with imprisonment for 10 years or more, in which SCs and STs are complainants and the accused do not belong to SCs or STs to the concerned Special Court for trial of offences under SCs and STs (Prevention of Atrocities) Act, 1989 for disposal according to law. The Special Judges for trial of offences under SCs and STs (Prevention of Atrocities) Act, 1989 at Guntur, Chittoor and Mahbubnagar are hereby directed to receive all the cases that are transferred to them by the said Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges mentioned supra and dispose of according to law. 51. The 2nd circular was issued in consequence of re-constitution of the Special Courts under G.O. Ms. No. 10-Social Welfare dated 7-2-1996. The relevant portion of the Circular issued by the High Court on administrative side reads as under: I am therefore to clarify that the Special Sessions Judges at Chittoor, Guntur and Mahbubnagar are hereby directed to follow the instructions issued in the reference first cited and to straightaway transfer all the pending cases of different districts to the Additional District and Sessions Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re invalid. The later circular dt. 26-2-1996 cannot therefore, be understood in the light of the circular dt. 30-9-1993. Accordingly, we clarify. 54. Before concluding, we may add that Section 193 is enacted in the Chapter with the heading Conditions requisite for initiation of proceedings . In Mohd. Safi v. State of West Bengal, 1966CriLJ75 , the Supreme Court while dealing with the competence of Court under the Code of Criminal Procedure observed as follows: The competence of a Court, however, depends not merely on the circumstance that under some law it is entitled to try a case falling in the particular category in which the offence alleged against the accused falls. In addition to this, taking cognizance of the offence is also material in this regard. Under the Code of Criminal Procedure, a Court can take cognizance of an offence only if the conditions requisite for initiation of proceedings before it as set out in Part B of Chapter XV are fulfilled. If they are not fulfilled, the Court does not obtain jurisdiction to try the offence . 55. The above observations of the Supreme Court seem to suggest that if the Special Court takes cognizance of the offence or offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribe. Where the punishment of not less than imprisonment for life and higher sentence i.e., death sentence is provided for in respect of offences such as the one under Section 302, IPC, the question of applying clause (v) of Section 3(2) does not arise. 57. The 4th question formulated by the learned single Judge is whether the clause (v) of Section 3(2) is attracted where the offence is committed against a person or property without knowing that such person is a member of the Scheduled Caste or Scheduled Tribe, but, it comes to light only subsequent to the Commission of offence that such person is a member of SC/ST. Here again, our answer is in the negative. The words 'on the ground' employed in clause (v) are important. It is the motive and intention at the time of commission of offence that matters. If the offence punishable with a term of 10 years of imprisonment or more is committed not because the victim is a member of SC/ST, but for other reasons or without having knowledge about the caste, there is no scope to apply Section 3(2)(v). For instance, a case of robbery for gain punishable under Section 392 does not attract Section 3(2)(v) merely because the victim is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controversies. Whether the Special Court can directly take cognizance of the offences under the Act together with the offences under I.P.C. or whether the committal is necessary, has given rise to a spate of litigations and has affected the prospects of successful prosecution. 61. Excepting the Kerala High Court, all other High Courts have taken the view that Section 193, Cr.P.C. applies and the committal is indispensable. We have shared the same view just-now-not without considerable anxiety. We felt that a different view cannot be taken by resorting to an interpretative process without trenching on the domain of law-making. All this has arisen because of the absence of specific provisions as are contained in various other Central enactments referred to supra, empowering the Special Court directly to take cognizance of the offences under the Act together with other offences committed in the course of the same incident. To achieve the desired objective of the Act and to make it more effective, it is desirable that the Parliament should step in and introduce necessary provisions with retrospective effect, if need be. 62. On the practical side of the implementation of the Act t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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