Ranvir Singh And Anr. vs State Of U.P. And Anr.
2019 Latest Caselaw 922 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 53
 

 
Case :- CRIMINAL APPEAL No. - 1553 of 2019
 

 
Appellant :- Ranvir Singh And Anr.
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Appellant :- Rajiv Lochan Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Umesh Chandra Tripathi,J.

[1]. This criminal appeal under Section 14A (1) of The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Act, 1989') has been filed on behalf of the appellants challenging the order dated 21.01.2019 passed by IInd Additional Sessions Judge/Special Judge (S.C./S.T. (P.A.) Act), Etawah, in Complaint Case No. 55 of 2017 (Tarvesh alias Sarvesh v. Ranvir Singh and Another), under Sections 323, 504 and 506 of the Indian Penal Code, 1860 (for short 'IPC') and Section 3(1)(r)(s) of Act, 1989, Police Station - Basrehar, District - Etawah, whereby appellants have been summoned under the aforesaid sections.

[2]. Heard Sri Rajiv Lochan Shukla, learned counsel for the appellants, Sri Ajay Kumar Pathak, learned A.G.A. for the State of U.P. in opposition and perused the material brought on record.

[3]. As per prosecution version, complainant/private-respondent Tarvesh alias Sarvesh is a member of the Scheduled Caste. A transformer is installed in his 'khet' (agricultural field). The accused-appellants - Ranvir Singh and Saurabh Yadav used to irrigate their agricultural field by drawing water from the tube well through illegal electric connection from that transformer. In the night of 06.05.2016, while they were irrigating their field by taking illegal electric connection through the transformer, the electric connection became disrupted, due to bluster of wind. They suspected that the complainant or his family members had disrupted the electricity connection. In the next morning i.e. on 07.05.2016 at about 07.30 P.M., accused-appellant - Ranvir Singh Yadav and Saurabh Yadav came into the field of complainant/private-respondent Tarvesh alias Sarvesh where he was working and started abusing and assaulting the complainant by blunt object 'lathi-danda' (wooden stick) and kicks and fists, with the allegation that he had deliberately disrupted the electric connection from the transformer situated in his field. On alarm being raised by the complainant, Nathuram and Adiram and other persons came on the spot and rescued the complainant, whereafter the accused went away, threatening the complainant to face dire consequences if he further dares to disrupt their electric connection. With the above allegation, the complainant/private-respondent Tarvesh alias Sarvesh lodged an application under Section 156(3) of the Code of Criminal Procedure, 1973 (for short 'Code') before the court and by the order of court, a case was registered on 23.07.2016 and the matter was investigated by the police.

[4]. After investigation, on 13.08.2016, the police submitted final report (F.R. No. 18 of 2016) against the accused-appellants. Against the F.R., the complainant/private-respondent Tarvesh alias Sarvesh filed protest petition on 22.11.2017. On the protest petition, enquiry was made by the trial court, whereafter on 27.11.2017, the trial court treated the aforesaid protest petition as complaint and directed for recording the statement of the complainant Tarvesh alias Sarvesh under Section 200 of the Code. Thereafter, statement of complainant Tarvesh alias Sarvesh under Section 200 of the Code and that of his witnesses - Adiram and Nathuram under Section 202 of the Code were recorded and the impugned summoning order has been passed.

[5]. Learned counsel for the accused-appellants contended that :-

(a) At the time of taking cognizance under Section 190(1)(a) of the Code, the Magistrate should consider the material collected during the course of investigation;

(b) Existing Special Judge (S.C./S.T.(P.A.) Act), Etawah has no jurisdiction to take cognizance directly for the offences under the Act, 1989 ; and

(c) Offence under Act, 1989 is triable by the court of sessions.

Accordingly, as per provision of Section 202 of the Code, it is the duty of the Special Judge to call upon the complainant to produce all his witnesses of fact and examine them on oath. Learned Special Judge has not examined the doctor who examined the complainant Tarvesh alias Sarvesh and the Investigating Officer (for short 'I.O.') of the case, who were material witnesses. Accordingly, the impugned summoning order is liable to be set aside.

[6]. Per contra, learned A.G.A. contended that there is no illegality or infirmity in the impugned order passed by the trial court.

[7]. In Jaykarn Singh and others v. State of U.P. and Another1 this Court held that there is no prohibition for the Magistrate from looking into the material collected during the course of investigation at the time of the summoning of the accused before taking cognizance under Section 190(1)(a) of the Code on the protest petition filed against a final report. Accordingly, Special Judge may also consider the material collected by the I.O. during the investigation. In the present case, it cannot be said that the learned Special Judge has not considered the material collected by the I.O. during investigation. Even if it is presumed that learned Special Judge has not considered all the materials collected by the I.O. during investigation, the cognizance order cannot be quashed merely on this ground, even if cognizance order has been passed on the basis of first information report and statement of the complainant under Section 200 of the Code and his witnesses under Section 202 of the Code.

[8]. A Full Bench of this Court in the case of In Re. Provision of Section 14-A of SC/ST (Prevention of Atrocities) Amendment Act, 20152 and connected cases held that existing special courts do not have the jurisdiction to directly take cognizance for the offence under Act, 1989. The Court held as under :

The existing Special Courts do not have the jurisdiction to directly take cognisance of offences under the 1989 Act. This power stands conferred only upon the Exclusive Special Courts to be established or the Special Courts to be specified in terms of the substituted section 14. However it is clarified that the substitution of Section 14 by the Amending Act does not have the effect of denuding the existing Special Courts of the authority to exercise jurisdiction in respect of proceedings under the 1989 Act. They would merely not have the power to directly take cognizance of offences and would be bound by the rigours of Section 193 Cr.P.C. Even if cognizance has been taken by the existing Special Courts directly in light of the uncertainty which prevailed, this would not ipso facto render the proceedings void ab initio. Ultimately it would be for the objector to establish serious prejudice or a miscarriage of justice as held in Rati Ram.

[9]. Accordingly, existing Special Judge has no jurisdiction directly to take cognizance in the offences under Act, 1989.

[10]. Section 460 of the Code reads as follows :

460. Irregularities which do not vitiate proceedings. If any Magistrate not empowered by law to do any of the following things, namely:-

(a) to issue a search- warrant under section 94;

(b) to order, under section 155, the police to investigate an offence;

(c) to hold an inquest under section 176;

(d) to issue process under section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction;

(e) to take cognizance of an offence under clause (a) or clause (b) of sub- section (1) of section 190;

(f) to make over a case under sub- section (2) of section 192; (g) to tender a pardon under section 306;

(h) to recall a case and try it himself under section 410; or

(i) to sell property under section 458 or section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.

[11]. As per pronouncement of the Full Bench of this Court and provision of Section 460(e) of the Code, the criminal proceedings shall not be quashed merely on the ground that existing Special Judge has no jurisdiction to take cognizance under Act, 1989.

[12]. Although Sessions Judges are notified to try offences under Act, 1989, but only because Sessions Judges are notified to try offences under Act, 1989, it cannot be said that all the offences under Act, 1989 are exclusively triable by the Court of Sessions.

[13]. Section 323 of the Code reads as follows :

323. Procedure when, after Commencement of inquiry or trial, Magistrate finds case should be committed. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall, commit it to that Court under the provisions hereinbefore contained 1[and thereupon the provisions of Chapter XVIII shall apply to the commitment so made].

[14]. Accordingly, even in Magistrate trial cases, if it appears to the Magistrate at any stage of proceedings that the case should be tried by the Court of Sessions, he shall commit it to the Court of Sessions.

[15]. Cases exclusively triable by Courts of Sessions are specified in the First Schedule of the Code. As per the First Schedule of the Code, offences not prescribed under the IPC, but prescribed under any other law, if punishable with death, imprisonment for life or imprisonment for more than seven years, shall be triable by the Court of Sessions.

[16]. In the present case, offence under Section 3(1)(r)(s) of Act, 1989 is not punishable with imprisonment for more than seven years, but for a term which may extend to a maximum of five years. Hence, the offence is not triable exclusively by the Court of Sessions, but by the Court of Magistrate.

[17]. Offences under Sections 323, 504, 506 of IPC are also not triable by the Court of Sessions, accordingly, as per provision of Section 202 of the Code, it is not mandatory for the Special Judge to call upon the complainant to produce all his witnesses of fact and examine them on oath.

[18]. In view of above, I find no infirmity or illegality in the impugned order dated 21.01.2019 passed by IInd Additional Sessions Judge/Special Judge (S.C./S.T. (P.A.) Act), Etawah and the same is based on substance and sound reasoning.

[19]. In the result, the instant appeal fails and the same stands dismissed summarily.

[20]. As discussed above, none of the aforesaid offences against the appellants is punishable with imprisonment for more than seven years. All the materials relevant for disposal of bail application is available on record before trial court/court concerned.

[21]. Accordingly, in exercise of extraordinary jurisdiction of this Court and in view of the order passed by this Court in the case of Smt. Sakeena and another v. State and Another reported in 2018 (2) ACR 2190, it is directed that in case the appellants file their bail application and also pray for interim bail, their prayer for interim bail shall be considered and decided on the same day and the regular bail shall be decided thereafter by affording an opportunity of hearing to the victim or his/her dependent as per the mandate of Section 15A (5) of Act, 1989.

[22]. For a period of 60 days from today or till the appellants surrender and apply for bail, whichever is earlier, no coercive action shall be taken against them.

Order Date :- March 11, 2019

I. Batabyal

[Umesh Chandra Tripathi, J.]

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