Moly Vs State of Kerala, AIR 2004, SC 1890
The Court examined whether special court can straightaway take cognizance of offences
under SC/ST Act without being committed to it by Magistrate?--Held, “no”.
The Court observed that the Section 194 of CrPC imposes an interdict on all Courts of
Session against taking cognisance of any offence as a Court of original jurisdiction - Can
take cognisance only if 'the case has been committed to it by a Magistrate - Exceptions
are when Code itself has provided differently in express language regarding taking of
cognisance or when any other law has provided differently in express language regarding
taking cognizance of offences under such law - Special Court under this Act is essentially
a Court of Session and it can take cognizance of offence when case is committed to it by
Magistrate in accordance with provisions of Code - A complaint or a charge-sheet cannot
straight away be laid down before Special Court under Act - Gangula Ashok and Anr v
State of A P (2000 Indlaw SC 601) and Vidyadharan v State of Kerala (2003 Indlaw SC
998) followed.
The Court said that Section 193 of the Code has to be understood in the aforesaid
backdrop. Hence a special court under the SC/ST 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 of the Code. In other words, a complaint or a chargesheet cannot straightaway be laid down before the special court under the Act.
DATE OF JUDGMENT: 23/03/2004
These appeals involve identical issues and are taken up
for disposal together.
Appellants faced trial for alleged commission of
offences punishable under Sections 3(1)(iii), 3(1)(v) and
3(1)(x) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (in short 'the Act').
The Trial Court found the appellants guilty and imposed
sentences. Appeal before the High Court did not bring any
relief to them.
The primary stand taken in this appeal is that the
Trial Court could not have suo moto entertained and
registered the complaint as a sessions case.
Learned counsel for the respondent-State supported the
judgment of the courts below stating that this plea is
taken for the first time in this Court and was not taken
before the Courts below.
Pristine question to be considered is whether the
Special Judge could take cognizance of the offence straight
away without the case being committed to him. If the Special
court is a Court of Session, the interdict contained in
Section 193 of the Code of Criminal Procedure, 1973 (for
short the 'Code') would stand in the way. It reads thus:
"193. Cognizance of offences by Courts
of Session- Except as otherwise expressly
provided by this Code or by any other law for
the time being in force, no Court of Session
shall take cognizance of any offence as a
court of original jurisdiction unless the
case has been committed to it by a Magistrate
under this Code."
So the first aspect to be considered is whether the
Special Court is a Court of Session. Chapter II of the Code
deals with "Constitution of Criminal Courts and Offices".
Section which falls thereunder says that :
"there shall be, in every State, the
following classes of criminal courts,
namely:
(i) Courts of Sessions;"
The other classes of criminal courts enumerated
thereunder are not relevant in this case and need not be
extracted.
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."
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).
Thus the Court of Session is specified to conduct a
trial and no other court can conduct the trial of offences
under the Act. Why did Parliament provide that only a Court
of Session can be specified as a Special Court? Evidently
the legislature wanted the Special Court to be a Court of
Session. Hence the particular Court of Session, even 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 Code which contains a fascicules of provisions for
'trial before a Court of Session".
Section 193 of the Code has to be understood in the
aforesaid backdrop. The Section imposes 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. Two segments have been indicated in
Section 193 as exceptions to the aforesaid interdict. One
is, when the Code itself has provided differently in express
language regarding taking of cognizance, and the second is
when any other law has provided differently in express
language regarding taking cognizance of offences under such
law. The word 'expressly' which is employed in Section 193
denoting those exceptions is indicative of the legislative
mandate that a Court of Session can depart from the
interdict contained in the Section only if it is provided
differently in clear and unambiguous terms. In other words,
unless it is positively and specifically provided
differently no Court of Session can take cognizance of any
offence directly, without the case being committed to it by
a Magistrate.
Neither in the Code nor in the Act is there 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 straight away 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.
A reading of the concerned provisions makes it clear
that subject to the provisions in other enactments all
offences under other laws shall also be investigated,
inquired into, tried and otherwise dealt with under the
provisions of the Code. This means that if another enactment
contains any provision which is contrary to the provisions
of the Code, such other provision would apply in place of
the particular provision of the Code. If there is no such
contrary provision in other laws, then provisions of the
Code would apply to the matters covered thereby. This
aspect has been emphasized by a Constitution Bench of this
Court in para 16 of the decision in A.R. Antulay v. Ramdas
Sriniwas Nayak (1984 (2) SCC 500). It reads thus"
"Section 4(2) provides for offences
under other law which may be investigated,
inquired into, tried and otherwise dealt with
according to the provisions of the Code of
Criminal Procedure but subject to any
enactment for the time being in force
regulating the manner or place of
investigation, inquiring into, trying or
otherwise dealing with such offences. In the
absence of a specific provision made in the
statute indicating that offences will have to
be investigated, inquired into, tried and
otherwise dealt with according to that
statute, the same will have to be
investigated, inquired into, tried and
otherwise dealt with according to the Code of
Criminal Procedure. In other words, Code of
Criminal Procedure is the parent statute
which provides for investigation, inquiring
into and trial of cases by criminal courts or
various designations."
Section 5 of the Code cannot be brought in aid for
supporting the view that the Court of Session specified
under the Act obviate the interdict contained in Section 193
of the Code so long as there is no provision in the Act
empowering the Special Court to take cognizance of the
offence as a Court of original jurisdiction. Section 5 of
the Code reads thus:
"5.- Saving- Nothing contained in this
Code shall, in the absence of a special
provision to the contrary, affect any special
or local law for the time being in force, or
any special jurisdiction or power conferred,
or any special form of procedure prescribed,
by any other law for the time being in
force."
This Court in Directorate of Enforcement v. Deepak
Mahajan (1994 (3) SCC 440) on a reading of Section 5 in
juxtaposition with Section 4(2) of the Code, held as
follows:
"It only relates to the extent of
application of the Code in the matter of
territorial and other jurisdiction but does
not nullify the effect of Section 4(2). In
short, the provisions of this Code would be
applicable to the extent in the absence of
any contrary provision in the special Act or
any special provision excluding the
jurisdiction or applicability of the Code".
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 of the
Code. In other words, a complaint or a charge-sheet cannot
straight away be laid down before the Special Court under
the Act. We are re-iterating the view taken by this Court
in Gangula Ashok and Anr. v. State of A.P. (2000 (2) SCC
504) and in Vidyadharan v. State of Kerala (2004 (1) SCC
215) in above terms with which we are in respectful
agreement. The Sessions Court in the case at hand,
undisputedly has acted as one of original jurisdiction, and
the requirements of Section 193 of the Code were not met.
Though the plea relating to lack of jurisdiction was
not raised before the lower Courts, in view of the
undisputed position on facts and inasmuch as a pure question
of law without any factual controversy is involved, we feel
interference on the facts of the case is called for.
One more plea which was pressed by learned counsel for
the appellants is that continuance of the proceedings before
the appropriate Court in the manner prescribed in law would
serve no useful purpose in view of the long passage of time.
We do not find any substance in this plea. It is for the
Competent Court to decide regarding the action to be taken
next, after hearing both sides as provided in Section 227 of
the Code. No direction can be given to the said Court at
this premature stage as to what course the Court should
adopt in dealing with the complaint. It is open to the
appellants to raise all their contentions at that stage if
they want to make a plea for discharge. We make it clear
that as and when such plea is made to the Judge of the
Competent Court, he shall pass appropriate orders in
accordance with law.
With the aforesaid directions and observations the
appeals are finally disposed of.
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