Deciding Authority : Supreme Court
Date of Judgement : 28/01/2000
Bench : K.T. THOMAS & M.B.SHAH
Facts : First appellant is a practicing advocate and second appellant is his wife who was working as Matron of a Girls’ Hostel run by the Social Welfare Department. One Kumari G. Swetha was a resident of the said hostel On 27.2.1996 the said Swetha lodged a complaint with the police alleging that on 6.1.1996 the first appellant outraged/tried to outrage her modesty. The police after investigation, filed a charge-sheet directly before the Sessions Court, Karim Nagar (Andhra Pradesh) which was designated as the special court for trial of offences under the Act committed within the territorial limits of the district concerned. In the charge-sheet, first appellant is alleged to have committed the offence under Section 3(1) (XI) of the Act and also Section 354 of the Indian Penal Code. Besides first appellant, the investigating officer arrayed his wife as the second appellant for the offence under Section 201 of the Indian Penal Code in relation to the offences put against her husband, on the allegation that when Kumari Swetha complained to the second appellant of the misdemeanor committed by the first accused, she tried to persuade the complainant not to divulge ft to anybody else. Subsequently the police dropped Section 354 of the IPC from the charge-sheet and filed a revised charge-sheet pursuant to a query put by the Special Judge concerned. A charge was framed by the Special Judge against both the appellants for the aforesaid offences respectively. It was presumably at the said stage that the appellants moved the High Court for quashing the charge as well as the charge-sheet on various reasons. A Single Judge of the High Court of Andhra Pradesh found that the procedure adopted by the inves-tigating officer in filing the charge-sheet straight-away to the Special Court was not in accordance with law, and the Special Judge had no jurisdiction to take cognizance of any offence under the Act without the case having been committed to that court. Accordingly the learned Single Judge set aside the proceedings of the Special Court and directed the charge-sheet and the connected papers to be returned to the police officer concerned who, in turn, was directed to present the same before a Judicial Magistrate of 1st Class “for the purpose of committal to the Special Court”. Learned Single Judge further directed that “on such committal the special Court shall frame appropriate charges in the light of the observations in the order
Judgements : We have to consider whether the Special Judge could take cog-nizance of the offence straightway 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 (for short ’the Code’) would stand in the way. 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 dearly distinguishable from inquiry. The word “inquiry” is defined in Section 2(g) of the Code as. “every inquiry, other than 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 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 S.2(l)(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. 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 to 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. 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.
This Court, on a reading of Section 5 in juxtaposition with Section 4(2) of the Code, has held that “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 including the jurisdiction or ap-plicability of the Code.” (vide para 128 in Directorate of Enforcement v. Deepak Mahajon, [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 of the Code. In other words, a complaint or a charge sheet cannot straightway 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 the view consistent with the view which we have stated above. (vide Meerabai v. Bhujbal Singh, (1995) Crl. L.J. 2376 MP; Papu Singh v. State of U.P., (1995) Crl LJ, 2803 Allahabad; Jhagurmahto v. State of Bihar, (1993) 1 Crimes 643 Patna; Jyoti Arora v. State of Haryana, (1998) 2 Crl. L.R. 73 P.& H. 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.
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 Hareendran 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 view of the Full Bench of the Kerala High Court, after adverting to the reasons advanced by the Full Bench. It must be noted that the observations of this Court in (A.R. Antulay (supra) were made in connection with the establishment of a Special Court under Criminal Amendment Act of 1952. What is to be pointed out is that a Special Judge appointed under the said Act was given the specific power to take cognizance of the offence without the case being committed to him. Hence the observations in A.R. Antuley’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 cog-nizance of the offence without the accused being committed to it for trial, (e.g. Section 36-A(l)(d) of the Narcotics Drugs and Psychotropic Substan-ces Act). It is significant that there is no similar provision in the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act. We therefore, hold that the legal postition stated in the decisions of the Kerala High Court in Re Director General prosecutions and Hareendran 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.
Held : Appeal disposed with Directions .
By Tejasv Anand , IVth Year , AMITY LAW SCHOOL,DELHI.
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