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Amarendra Nath Tewary v/s Basana Lohar (Midya)


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    Criminal Revision No. 3244 of 2018 & CRAN No. 1504 of 2019

    Decided On, 22 May 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MRS. JUSTICE MADHUMATI MITRA

    For the Appearing Parties: Milon Mukherjee, Sandipan Ganguly, Amarendra Chakraborty, Amarnath Sukul, Advocates.



Judgment Text


1. Petitioner has assailed the impugned order dated 10.08.2018 passed by the Learned Judicial Magistrate, 1st Court Gorbeta, Paschim Medinipore in C.R.Case No.10 of 2018. By the impugned order Learned Magistrate forwarded above mentioned C.R.Case No.10 of 2018, to the Special Court, Medinipore, constituted for trial of offences under The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986. The opposite party no.2 on 01.06.2018, filed a petition of complaint under Section 156(3) of the Code of Criminal Procedure before the Learned Additional Chief Judicial Magistrate, Gorbeta seeking direction upon the officer-incharge of Gorbeta, Police station to treat the said petition as an F.I.R. against the present petitioner and his daughter under the relevant provisions of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986.

2. Instead of sending the said petition to the concerned P.S for treating the same as an F.I.R., Learned Magistrate registered the same as a complaint case and took cognizance of the offence and transferred the same to Learned Judicial Magistrate, 1st Court, Gorbeta for disposal.

3. On 26.06.2018, the Learned Magistrate, 1st Court, Gorbeta examined the complainant and another witness under Section 200 of the Code of Criminal Procedure. Thereafter, he formed an opinion that further investigation regarding the alleged facts of the case was required to be made. As such, he directed Gorbeta Police Station authority to investigate the facts of the complaint and to submit a report.

4. Copy of order dated 27.07.2018 shows that enquiry officer submitted the inquiry report and complainant was directed to produce rest of the witnesses for examination on S/A. on 10.08.2018.

5. On 10.08.2018 complainant had produced rest witnesses who were examined under Section 200 of the Code of Criminal Procedure. Learned Magistrate after considering the inquiry report, deposition of witnesses including the complainant and other materials on record and has formed his opinion that the case attracts the provision of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986 which is exclusively triable by Special Court constituted under the provision of the said Act.

6. The validity, propriety and legality of the impugned order have been challenged on various scores.

7. Learned Advocate appearing for the petitioner has submitted that the impugned order passed by Learned Magistrate is not tenable in law.

8. His 1st contention is that the cognizance taken by the Learned Additional Chief Judicial Magistrate (in-charge) on 01.06.2018 was bad in law. In support of his contention he has placed his reliance on Section 14 of the Act and has submitted that Section 14 of the Act was substituted by way of amendment in the year 2015 and the said substituted provisions of Section 14 came into force with effect from 26.01.2016. After 26.01.2016 power to take cognizance of the offences under the Act has been vested only in Special Court and amendment of Section 14 has totally ousted the power of the Magistrate to take cognizance under Section 190(1)(a) of the Code of Criminal Procedure in respect of the offences under The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986.

9. The 2nd contention of the petitioner is that in view of the Rule 7 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Rules, 1995 made under the provisions of sub-section (1) of Section 23 of the Act, an offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police but the Learned Magistrate in violation of that rule gave direction to Gorbeta Police Station to investigate on the facts of the case which is beyond the scope and ambit of the Rules framed under the Act.

10. The 3rd contention of the petitioner is that the Learned Magistrate has committed an error by forwarding the case to the Special Court after observing that the case comes within the provisions of The Schedule Castes and The Schedule Tribes (Prevention of Atrocities) Act, 1986 on the basis of the enquiry report of police without mentioning the specific section of the Act and it amounts to taking of cognizance by the Magistrate under Section 190(1)(b) of the Code of Criminal Procedure i.e upon a police report of such facts. According to his contention, learned Magistrate cannot take cognizance both under Section 190(1)(a) and 190(1)(b) of the Code of Criminal Procedure in respect of self same offence.

11. Now, I have to deal with questions as raised by the Learned Advocate appearing for the petitioner. Before proceeding further in the matter, let me now deal with the relevant provisions of the Act to see, whether the Learned Magistrate has committed an error by taking cognizance of the alleged offence under Section 190(1)(a) of the Code of Criminal Procedure.

12. Section 14 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986 provides for establishment of Special Courts. Section 14 has been substituted with effect from 26.01.2016.

13. Now Section 14 read as under:-

"14. Special Court and Exclusive Special Court

(1) 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, establish an Exclusive Special Court for one or more Districts:

PROVIDED that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act:

PROVIDED FURTHER that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.

(2) It shall be the duty of the State Government to establish adequate number of Courts to ensure that cases under this Act are disposed of within a period of two months, as far as possible.

(3) In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing:

PROVIDED that when the trial relates to an offence under this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet."

14. Prior to substitution of Section 14 of the Act in the year 2016, the Section 14 of the Act read as under:-

"14. Special Court- 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 Sessions to be a Special Court to try the offences under this Act."

15. In this connection Learned Advocate for the opposite party has submitted that the Learned Magistrate has rightly taken the cognizance of the offence as alleged. In support of his contention he has placed reliance on the decision of the Hon'ble Apex Court in Moly and Another Versus State of Kerala, (2004) CriLJ 1812 Appellants .

16. I have gone through the decision so cited by the Learned Advocate for the opposite party no.2. In the decision so cited a question was raised before the Hon'ble Apex Court, whether a Special Court established under the provisions of Section 14 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986 could take cognizance of offence straightway without the case being committed to it by Magistrate.

17. In paragraph 16 of the said Judgment Hon'ble Apex Court has been pleased to observe as under:-

"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-way be laid down before the Special Court under the Act. We are reiterating the view taken by this Court in Gangula Ashok and another v. State of A.P., (2000) 2 SCC 504 and in Vidyadharan v. State of Kerela, (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."

18. Learned Senior Advocate appearing for petitioner has rightly pointed out that the judgment as cited by the Learned Advocate for the opposite party no.2, was passed in the year 2004 and the new provision, i.e. the substitution of Section 14 came into force in the year 2016. He has further contended that the decision cited by the Learned Advocate for the opposite party has no bearing with the present case.

19. In the case at hand, the alleged incident took place on 23.04.2018 and 27.04.2018, i.e after amendment of Section 14 in the year 2015. So far as the present case is concerned, there is no doubt that it would be governed by the amended provisions of Section 14 of the Act. Prior to amendment of Section 14, the power to take cognizance in respect of offences was not vested in the Special Court's established under The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986. After amendment, the power to take cognizance in respect of the offences under the Act has been vested in the Special Court established under the Act.

20. 'Special Court' is defined in the Act as a Court of Sessions specified as a Special Court in Section 14. Now the question comes whether the vesting of power to take cognizance of the offences under the Act directly in Special Courts ousts the power of the Magistrate to take cognizance of the offences under the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986, under Section 190(1)(a) of the Code of Criminal Procedure.

21. Chapter IV of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986, deals with the provisions for speedy trial of the offences under the said Act by the Special Courts. The object of establishment of Special Court is to render speedy trial. Whereas, Chapter XIV of the Code of Criminal Procedure deals with the conditions requisite for initiation of proceedings. When a complaint under Section 156(3) of the Code of Criminal Procedure is filed before the Magistrate, the Magistrate may direct the police to register the said complaint as an FIR and to investigate. When the Magistrate does not direct to register the same as an FIR, then the Magistrate is duty bound to take cognizance under Section 190(1)(a) of the Code. Sections 190 to 199 of the Code deal with conditions requisite for initiation of proceedings. Chapter XV of the Code of Criminal Procedure (Sections 200 - 203) deals with complaints to Magistrates and covers cases before actual commencement of proceeding. Section 200 Cr.P.C. requires a Magistrate to examine the complainant and his witnesses on oath. In case of sessions triable offences the Magistrate has to examine all the witnesses of the complainant including the complainant. Section 202 of the Code enables the Magistrate before issuance of process either to inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of forming an opinion whether there is sufficient ground for proceeding further.

22. The main object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It helps the Magistrate to form an opinion whether the process should or should not be issued. The scope of an inquiry under Section 202 is only for limited and restricted purpose and not for collection of evidence.

23. Taking cognizance for the purpose of initiation of proceeding and to enquire under Section 202 Cr.P.C. for the purpose of deciding whether there is sufficient ground for proceeding further cannot be equated with taking cognizance by the Sessions Judge under Section 193 of the Code of Criminal Procedure or under Section 14 (as amended) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986. Main object of establishment of Special Courts is to render speedy trial of the offences under the Act. The provisions contained in Section 14 of the Act have also specified the period for conclusion of trial. Prior to amendment of Section 14 of the Act, the Special Courts was not vested with the power to take cognizance in respect of the offences under the Act. Section 2(d) of the Act describes the Special Court as Court of Sessions and such prior to amendment of Section 14 of the Act the Special Court had no power to take cognizance of the offences unless the case was committed under Section 193 of the Code of Criminal Procedure. Prior to amendment, there was no provisions to send the case directly to the Special Court as Special Court was not vested with the power to take cognizance directly and Special Judge could take cognizance of the offence under the Act only under Section 193 of the Code of Criminal Procedure.

24. After the amendment of Section 14 of the Act, Special Judge may be termed as Court of Original Jurisdiction and it can take cognizance of the offence under the Act directly without the case being committed to it by the Magistrate under Section 193 of the Act. In this connection it would not be out of place to look at Section 193 of the Code of Criminal Procedure.

25. Section 193 read as under:-

26. Cognizance of offences by Courts of Sessions- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions 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 Court. Now, the Magistrate can directly send the case relating to the offences under the Act to the Special Court and the Special Court can take cognizance of the offence directly.

27. Moreover, The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986 is a Special Statute. But, this statute has not prescribed any separate procedure for investigation, inquiry, trial of the offences under this Act except

28. Rule 7 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Rules 1995. Rule 7 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Rules 1995 made under sub-Section (1) of Section 23 of the Act provides that an offence committed under the Act shall be investigated by the Police Officer not below the rank of a Deputy Superintendent of Police. In this connection Learned Senior Advocate for the petitioner raised question regarding the legality of the direction given by the Learned Magistrate to the Gorbeta P.S. to investigate into the facts of the complaint.

29. In this connection, it would not be out of place to mention that an inquiry under Section 202 of the Criminal Procedure Code is quite different from investigation.

30. Section 2(g) of the Code defines inquiry, 'Inquiry' means every inquiry, other than a trial, conducted under the Code by a Magistrate or Court.

31. On the other hand, 'investigation' has been defined in Section 2(h) of the Code. Investigation includes all the proceedings under this Code for the collection of evidence conducted by a Police Officer or by any person (Other than a Magistrate) who is authorized by a Magistrate in this behalf.

32. Investigation of an offence under the Act by an investigating officer as mentioned in Rule 7 of the Rules framed under the Act is quite different from inquiry or investigation under Section 202 of the Criminal Procedure Code. The object of investigation under Rule 7 of the Rules framed under the special statute is not similar to that of an inquiry or investigation under Section 202 of the Code of Criminal Procedure.

33. Satisfaction of the Magistrate to issue process after considering the inquiry report under Section 202 is not equivalent to take cognizance of the offence under Section 190(1)(b) of the Code of Criminal Procedure. Under Section 190(1)(b) of the Code of Criminal Procedure, the Magistrate may take cognizance of any offence upon a police report of such facts. As per Section(r) of the Code of Criminal Procedure, 'Police Report' means a report forwarded by a police officer to a Magistrate under Sub-Section (2) of Section 173.

34. In view of the provisions as contained in sub-Section 2 of Section 4 of the Code of Criminal Procedure offence under any other law shall be investigated, inquired into, tried by the provisions of Code of Criminal Procedure unless the special statute excludes.

35. Here only Rule 7 made under the provisions of the statute provides that the investigation of offences under the Act shall be conducted by a police officer not below the rank of Deputy Superintendent of Police and the special statute has laid down provisions for taking cognizance and procedure for speedy trial of the cases under the Act.

36. The jurisdiction of the Magistrate under Section 167 of the Code of Criminal Procedure, has not been ousted by the provisions of the Act itself i.e. The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986.

37. In order to understand the power of the Magistrate in relation to The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, properly, the relevant provisions of other special statutes may be compared with.

38. In this connection it would be out of place to mention certain provisions as contained in Narcotic Drugs and Psychotropic Substances Act, 1985. Section 36 of the Act deals with creation of Special Court for speedy trial of the offences under the Act.

39. Section 36A(1)(b) restricts the power of the Magistrate to authorize the detention of a person accused of or suspected of the commission of an offence under this Act for the period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate.

40. In view of provisions as contained in Section 36A(1)(c) of the Narcotic and Psychotropic Substances Act, 1982 the Special Court has been vested with the power of a Magistrate under Section 167 of the Code of Criminal Procedure, but no such power has been vested in the Special Court under The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986. So far as the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act 1986 is concerned, the power of the Magistrate under Section 167 or under Section 190(1)(a) of the Code of Criminal Procedure has not been ousted either by specific provision or by necessary implication.

41. Section 36A(1)(d) of the Narcotic Drugs and Psychotropic Substance Act, 1985 provides that a Special Court may, upon perusal of police report of the facts constituting an offence under the Act or upon complaint made by an officer of the Central Government or a State Government authorized in this behalf take cognizance of that offence without the accused being committed to it for trial.

42. Again Section 16 of the National Investigation Agency Act, 2008 lays down that a Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts.

43. On the other hand, Section 14 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986 only says about taking cognizance directly. Power to take cognizance of the offences by the Special Court under the provisions of Narcotic Drugs and Psychotropic Substances Act and under the provisions of National Investigation Agency Act, 2008 are similar to that of the power vested in the Magistrate regarding taking of cognizance under Section 190(1)(a) and 190(1)(b) of the Code of Criminal Procedure. No such power has been vested in the Special Court under Section 14 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986.

44. Both the Narcotic Drugs and Psychotropic Substances Act and National Investigation Agency Act, use the "words without the accused being committed to it for trial."

45. Section 193 of the Code of Criminal Procedure speaks about commitment of cases not commitment of accused.

46. The words "without the accused being committed to it for trial" as used in the Narcotic Drugs and Psychotropic Substances Act and The National Investigation Agency Act, perhaps have been used to mean that at the time of taking cognizance of the offences by Special Courts under those Acts as there is no requirement of commitment of the case and production of accused to the Special Courts by the Magistrate.

47. After amendment of Section 14 of the Scheduled Caste and

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The Scheduled Tribes (Prevention of Atrocities) Act, 1986 the question of commitment of the case under Section 193 of the Code of Criminal Procedure does not arise as the Special Court has been vested with the power to take cognizance of the offences under the Act directly. Learned Magistrate has forwarded the case to Special Court, as it appeared to him that the alleged acts constituted offence under the provisions of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986. 48. A question has been raised by the petitioner that Learned Magistrate at the time of forwarding the case to the Special Court did not mention the specific section under which alleged offence comes. Now the question comes whether non-mention of the specific section would render the entire criminal proceedings liable to be quashed. In my view non-mention of specific section by the Learned Magistrate would not be fatal in the instant case as Learned Magistrate has forwarded the case to the Court of competent jurisdiction. Special Court having exclusive jurisdiction to try the offences under The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1986 may proceed with the case in accordance with law. The alleged irregularity as pointed out by the petitioner will not prejudice the interest of the petitioner. Moreover, the procedural requirements are generally meant to subserve the ends of justice. It is not desirable to give unnecessary importance on those technicalities in respect of matters which are not of vital or important significance in a criminal trial. 49. The above discussions and observations led me to hold that the Learned Magistrate has acted within his jurisdiction and cognizance taken by Learned Magistrate cannot be said to be bad in law. I do not find my reason to interfere with the impugned orders passed by the Learned Magistrate or to quash the entire proceedings being C.S.Case No.320 of 2018 pending before the Learned Judicial Magistrate, 1st Court, Gorbeta. 50. As a result, the revisional application is dismissed. Re: CRAN 1504 of 2019 51. In view of dismissal of CRR 3244 of 2018, the CRAN 1504 of 2019 becomes infructuous and also stands dismissed. 52. Urgent Photostat certified copy of this judgment be supplied to the parties, if applied for, upon compliance with all formalities.
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