GANGULA ASHOK AND ANR. v. STATE OF ANDHRA PRADESH

Citation: [2000] 1 S.C.R. 468

Court: Supreme Court of India

Bench: K.T. THOMAS, M.B. SHAH

Judgment text

GAl\/GULA ASHOK A"lD ANR. v. STATE OF ANDHRA PRADESH JANt. :ARY 28, 20GO 8 [K. T. THOMAS AND M. B. SHAH, JJ.

] Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989-Sections 2( l)(d1; 14--Special Court-Specification of-Held: it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be ;pecified as a Special Court-Offences---Cognizance of-Held, a Special Court can take cognizance of the offence only when the case is committed to it by the Magistrate in accordance with the provisions ofthe Code of Criminal Procedure-A particular Court ofSession, even after being specified as a Special Court, continues to be essentially a Court of Session and the interdict imposed by Section 193 of the Code of Criminal Procedure on all Courts of Session against taking cognizance of any offence as Court of origi11al jurisdictio11 would be applicable-He11ce, a complaint or charge sheet could not straightway be laid before the Special Court--{Jnless there is express provision to the co11trary in a11y other law, the provisions of the Code will apply and interdict contained i11 Section 193 of the Code cannot be circumienteli-Code of Criminal Procedure, 1973-Sectio11s 2(g); 4(2); 5; 6 and 193 Direction by the High Court to the Special Court to frame charges after committal of the case-Pennissibility of-Held, after committal of a case to a Special Court, it is for that Court to decide regarding the action to be take11 next after hearing both sides and no direction can be given to it by the High Court at that stage-Code of Criminal Procedure, 1973-Section 227.

The second appellant was working as Matron of a Girls' Hostel run by the Social Welfare Department. One of the residents of the said Hostel lodged a complaint with the police alleging that the first appellant, husband of the second appellant, outraged/tried to outrage her modesty and when she complained to the second appellant about the same, the second appellant tried to persuade her not to divulge it to any body else. The police after investigation, filed a charge sheet directly before the Sessions Court which was designated as the Special Court for trial of offences under Scheduled Caste_s and Scheduled Tribes (Preventions of Atrocities) Act, 1989 com- GANGt;LAASHOK v. STArE 469 mitted within the territorial limits of the district concerned. Pursuant thereto, a charge was framed by the Special Judge against both the appellants for the aforesaid offences respectively.

Thereafter, the appellants moved the High Court for quashing the charge as well as the charge sheet on various reasons. Single Judge of the High Court set aside the proceedings of the Special Court thereby holding that the procedure adopted by the investigating officer in filing the charge sheet straightway to the Special Court was not in accordance with law. The Charge sheet and the connected papers were directed to be returned to the Police Officer concerned, who, in tum, was directed to present the same before a Judicial Magistrate of first class "for the purpose of committal to the Special Court. " The Single Judge further directed that "on such committal the Special Court shall frame appropriate charges in the light of the observations in the order". Against the aforesaid order, the appellants have preferred the present appeal. Disposing of the appeal, this Court HELD : 1. 1.

ASpecial Court under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is essentially a Court of Session and it can take CO! ,'Ilizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the Code of Criminal Procedure. In other words, a complaint or a charge sheet cannot straightway be laid before the Special Court under the Act and the interdict contained in Section 193 of the Code of Criminal Procedure would stand in the way. [476-F] 1. 2. 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 Court of original jurisdiction without the case being committed to it by magistrate. If that be so, there is no reason to think that the charge sheet or a compliant 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 ofSession is given a superior and special status. Hence the legislature has 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. [474-G-H; 475-A] Meerabai v. Bhujbal Singh, (1995) Crl. LJ. 2376 MP; Pappu Singh v. State ofU. P. , (1! 195) Crl. L. J. 2803 AJlahabad; fhagurmahto v. State ofBihar, (1993) 1 Crimes 643 Patna; Jyoti Arora v. State ofHaryana, (1998) 2 Crl. L. R. 73 P&H; Referri11g Officer rep. by State ofA. P. v. Shekar Nair, (1999) 3 ALT 533 = (1999) Crl. L. J. 4173, appro11ed. In re : Director General of Prosecution (1993) Crl. L. J. 760 =(1992) 2 Kerala Law Times 748; Hareendran v. Sarada, (1996) 1 ALT (Crl. ) 162 = (1995) 1 KLT 231, Overruled. 2. 1.

It is for trial of the offenc1:s under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Hence the particular Court of Session, el'en after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Cod:e which contains a fasciculus of provisions for ''Trial before a Court of Session". Section 193 of the Code i1mposes an interdict on all Courts of Session against taking cognizance of any offence as a Court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a magistrate', as provided in the Code. [473-1 pecia1 form of procedure pn:scrihed, by any other law for the time being in force.

" This Court, on a reading of Section 5 in juxtaposition with Section 4(2) of the l 'ode, has held rhat "it only relates to the extent of application of the Code in the mattt:r of territorial and other jurisdiction but does not nullify the effect of Section 4(2); In short, the provisions of this Code would be applicabk to the extent, in the absence of any contrary provision in the special Act or any special provision including the jurisdiction or applicability of the Code. " (vide para 128 in Directorate of Enforcement v. Deepak Mahajan, \1994] 3 SCC 440. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions t'f the Code. ln other words, a complaint or a charge sheet cannot strai[lhtway be laid before the Special Court under the Act.

When this question was considered by various High Courts, the High Courts of Madhya Pradesh, Allahabad, Patna and Punjab & Haryana have adopted tht: view consistent with the view which we have statt:d above. (vide lvfeerabai v. Bhujbal Singh, (1995) Cr\. L. J. 2376 MP; Papu Singh v. State of U. P , (1995) Crl. L. J. 2803 Allahabad; Jhagurmahto v. State ofBihar, (1993) l Crimes 643 Patna; Jyoti Arora v. State of Haryana, (1998) 2 Crl. L. R. 73 P. & H. GANGULAASHOKv. STATE(THOMAS,J. ] 477 But it seems that the only High Court which took a contrary view is ' the High Court of Kerala. At first a Division Bench of that High Court took the view that the Special Court can straightway take cognizance of the offence under the Act and proceed with the trial unaffected by Section 193 of the Code. (vide In re: Director General of Prosecution, (1993) Crl. L. J. 760 - (1992) 2 Kerala Law Times 748.

One of the Judges of the Division Bench sought support to it from the observations of this Court in A. R. Antulay's decision (supra) and then observed that ''the same principle would apply because of the effect of the transmutation of the Session Court as a Special Court. " When the correctness of the above decision was later doubted by the same High Court the question was refcued to a larger bench. In Hareendran v. Sarada, (1996) 1 ALT Crl. 162 = (1995) 1 KLT 23 a Full Bench of that High Court affirmed the view of the Division Bench afon:said. The Full Bench put forward mainly two reasons for adopting the said interpretation. First is that Section 20 of the Act stipulated that provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

As the section gives overriding effect for the provisions of the Act and it was enacted with a view to prevent commission of offence of atrocities against =- the member of the Scheduled Castes and Scheduled Tribes, the Full Bench felt that ''it is rather difficult for us to hold that the committal proceedings is indispensable as a prelude to the case being tried by the Special Court. ' Second is that, there is nothing in the Act to indicate that the Special Court would get jurisdiction only on a committal order made by the magistrate. The very approach of the Full Bench of the Kerala High Court seems to be that there should be specific indication in the Act that the Special Court gets jurisdiction to try the offence only on a committal order, and in the absence of such specific indication the Special Court must have the right to take cognizance of the offence as though it is a court of original jurisdiction.

We have pointed out above that unless there is express provision to the contrary in any other law the interdict contained in Section 193 of the Code cannot be circumvented. Hence the reasoning of the Full Bench in Hareendrun v. Sarada (supra) is apparently fallacious. = In fact all the other High Courts which dealt with this question (the decisions of which were cited supra) have dissented from the aforesaid 478 SCPREMF. COURT REPORTS (2000] 1 S. CR. vfow of the Full Bench of the Kcrala High Court, after adverting to the reasons advanced by the Full Bcnch. A Division Bench of the Andhra Pradesh High Court afta referring to the Full bench decision in Hareendran v, Sarada (supra) made the following observations in Referring Officer rep. By State of A. P. v. Si1ekar Nair, (1999) 3 ALT 533 = (1999) Crl. LJ 4173 : "We find it difficult tu agree with the reasoning of the Kerala High Court in the two decisions refom:d to above.

As already observed by u~, in the absence of a particular procedure prt! scribed by the said Act as n:gards the mode of taking cognizance, enquiry or trial, the procedure under the Code will have to be applied by reason of Stction 4(2) of the Code as clarified by the Supreme Court in the case of Directorate of Enforcement (AIR (1994) SC 1775). There is no provision in the Act which excludes the application of Section 191, Cr. P. C. The mere fact that no procedure is prescribed or specified under the Special Act dues not mean that the Special Act dispenses with the procedure for committal in the Case triable by Court of Sessions and that the Special Court gets original jurisdiction in the matter of initiations, enquiry or trial. There is no good reason why the procedural provisions of Code relating to power and mode of takin;5 cognizance including Section 193 should not be applied to the Special Court.

" We are of the considered opinion that the Division Bench of the Andhra Pradesh High Court has stated the legal position correctly in the above decisicm. It must be noted that the observations of this Court in (A. R. Antulay (supra) were made in connection with th. : establishment of a Special Court under Criminal Amendment Act of 1952. What is to be pointed out is that Special Judge appointed under the said Act was given the specific power to talce cognizance of the offonce without the case being committed to him. Hence the observations in A. R. . A. ntult:y's case cannot be profitably utilized to support the interpretation of another Act wherein there is no such specific provision. It is contextually relavant to notice that Special Courts created under certain other enactments have been specially empowered to take cognizance of the offonce without the accust:d being committed tu it for trial, GANGULAASHOKv. STATE[THOMAS,J. j 479 (e. g.

Section 36-A{l)(d) of the Narcotics Drugs and Psychotropic Substances Act). It is significant that there is no similar provision in the Scheduled Castes Scheduled Tribes (Prevntio11 of Atrocities) Act. We therefore, hold that the legal postilion stated in the decisions of the Kerala High Court in Re Director General prosecutions and Hareendra11 v. Sarada, is not in accordance with law. We approve the interpretation adopted by the other High Courts in the decisions referred to above as the correct legal position. So the High Court of Andhra Pradesh has rightly set aside, as per the impugned order, the proceedings initiated by the special Court Specified under the Act. But we do not support the directions given by the learm:d Single Judge in his order that after committal of the case the special Court shall frame charge against the appellants. It is for the Special Court to decide regarding the action to be taken next, after h. :aring both sides as provided in Section 227 of the Code.

No direction can be given to the Special Court at this premature stage as to what the court should adopt then. It is open to the appellants to raisi: all their contentions at that stage if they wish to make a plea for discharge. We make it clear that if any such plea is made the Judge of the Special Court shall pass appropriate orders untrammeled by the observations made in the impugned order. With the said directions and observations we disposed of this appeal. M. P. Appeal disposed of