Sunil Singh And 4 Others vs State Of U.P. And Another
2023 Latest Caselaw 14660 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Neutral Citation No. - 2023:AHC:101132
 
Court No. - 81
 
Case :- CRIMINAL APPEAL No. - 4024 of 2023
 
Appellant :- Sunil Singh And 4 Others
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Sujan Singh,Manoj Kumar Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Sujan Singh, learned counsel for the appellants as well as learned Additional Government Advocate for the State and perused the record.

The instant appeal under Section 14-A(1) SC/ST (Prevention of Atrocities) Act, has been filed by the appellants- Sunil Singh, Abhay Singh, Sunil Singh @ Arun Kumar Singh, Sudhir Singh and Upendra Singh with the prayer to allow the present appeal and set aside the judgment and order dated 16.02.2022 passed by the Court of learned Additional Judicial Magistrate, Mau, District Mau in relation with Case No. 500 of 2005 (Old Case No. 425 of 2000) (State vs. Sunil Singh and Others), arising out of Case Crime No. 18 of 2000, Police Station Ranipur, District Mau, under Sections 147, 323, 504, 506 I.P.C. read with Section 3(1)(X) of SC/ST Act, Mau and to stay the further proceedings of the aforesaid case. 

Learned counsel for the appellants while referring to the order sheet, extract of which has been placed at Page No.6 of the supplementary affidavit of date 09.04.2023, submits that by virtue of Section 20 of the SC/ST Act, provision has been made to make the overriding affect of the provisions of this 'Act' notwithstanding anything inconsistent provided in any other law and since a specific provision has been made under Section 14 of the SC/ST Act pertaining to taking of cognizance of the offences under this Act bu Special Court directly, grave illegality has been committed by the Magistrate while taking cognizance of the offences pertaining to the offences of SC/ST Act and, thus, all the proceedings pending before the trial Court are nothing but abuse of the process of law and the same be quashed/set-aside.

It is also submitted that the appellants shall be prejudiced by the pendency of the case before the wrong forum.

Learned A.G.A. on the other hand submits that it was in the year 2009, the appellants had appeared before the Magistrate for the purpose of securing bail and thereafter they are absconding and as the appellants are absconder, they are not entitled for any discretion of this Court.

Having regard to the facts and circumstances of the case and keeping in view the order intended to be passed, the service of notice on opposite party no.2 is hereby dispensed with.

During the course of submissions learned counsel for the appellant has relied on the law laid down by the Full Bench of the Kerala High Court in 'Hareendran vs. Sarada' reported in 1994 LawSuit (KER) 300 specifically on the Para No.5 and 6 of the 'Report' as well as on the law laid down by the Hon'ble Supreme Court in 'Gangula Ashok vs. State of Andhra Pradesh' reported in 2000 LawSuit (SC) 199.

I have considered the submissions made by learned counsel for the appellants and the law on which the reliance has been placed by learned counsel for appellants. The issue which is attempted to be hammerred by learned counsel for the appellants appears to be no more res integra. In Gangula Ashok (supra), relied on by learned counsel for the appellant, Hon'ble Supreme Court opined as under:

"17. 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. A Division Bench of Andhra Pradesh High Court after referring to the Full Bench decision in Hareendran vs. Sarada made the followig observations in Referring Officer rep. By State of A.P. vs. Shekar Nair, 1999 CrLJ 4173

"We find it difficult to agree with the reasoning of the Kerala High Court in the two decisions referred to above. As already observed by us, in the absence of a particular procedure prescribed by the said Act as regard the mode of taking cognizance, enquiry or trial, the procedure under the Code will have to be applied by reason of Section 4(2) of the Code as clarified by the Supreme Court in the case of Directorate of Enforcement 1994 AIR (SC) 1775. There is no provision in the Act which excludes the application of Secton 193, Cr.P.C. The mere fact that no procedure is prescribed or specified under the Special Act does 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 taking cognizance including Section 193 should not be applied to the Special Court."

18. 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 decision."

The relevant paragraphs of the order of the Hon'ble Division Bench of this Court in 'Gyanendra  Maurya vs. Union of India and Others' reported in MANU/UP/0238/2023 are also reproduced as under:-

"34. We have already held that Section 156(3) of Code 1973 will apply to investigation of an offence under the Act 1989 and as per Section 156(3) of Code 1973 a Magistrate empowered under Section 190 of Code 1973 can order such investigation and as, in view of proviso to Section 14 of the Act 1989 read with Section 190 of Code 1973, it is the Courts established or specified under the Act 1989 which can take cognizance directly in respect of an offence under the Act 1989, therefore, the Magistrate can not and should not take cognizance of an offence under the Act 1989 as such power when specifically vested with the Special Courts under the Act 1989 should be exercised by the latter as held in Shantaben Burabhai Bhuriya vs. Anand Athabhai Chaudhari MANU/SC/0983/2021, therefore, this power under Section 156(3) of Code 1973 has to be exercised by such Exclusive or Special Courts and not the Magistrate.

35. It would have been better if the Legislator would have specifically provided for such powers to be exercised by the Exclusive Special Court or the Special Court, but the fact of the matter is that there is no specific exclusion of the power under Section 156(3) of Code 1973 from being exercised by the Courts established or specified under Section 14 of the Act 1989 and in view of the second proviso to Section 14 of the Act 1989 as these Courts have the power to take cognizance of an offence directly and also to entertain a complaint directly as per Section 190 of Code 1973, then, the Magistrate would not have the power to exercise jurisdiction under Section 190 in respect of an offence under the Act 1989 and this power should only be exercised by these Special Courts, although, if the Magistrate in a given case erroneously takes cognizance of an offence under the Act 1989 and then commits the case to the Special Court, this by itself will not vitiate the proceedings/trial as has been held by the Supreme Court in Shantaben Burabhai Bhuriya (supra) and Ramveer Upadhyay & Anr. Vs. State of U.P. & Anr. MANU/SC/0471/2021. In view of Section 156(3) of Code 1973 thy can also order lodging of FIR and investigation where the offence alleged is under the Act 1989."

The decision of Full Bench of this Court in Naresh Kumar Valmiki and Others Vs. State of U.P. & Ors. reported in MANU/UP/3410/2022 has held as under:-

" 13. The Apex Court in the case of Shantaben Bhurabhai Bhuriya vs. Anand Athabhai Chaudhari and others MANU/SC/0983/2021 : AIR 2021 SC 5368, in para-9.1 ruled that in view of insertion of proviso to Section 14 of the Act and considering the object and purpose for which the same has been inserted, it is advisable that the court so established or specified in exercise of powers under Section 14 of the Act for the purpose of providing speedy trial, directly take cognizance of offences under the Atrocities Act. The para 9.1 is quoted herein-below:-

"9.1. On fair reading of Sections 207, 209 and 193 of the Code of CriminalProcedure and insertion of proviso to Section 14 of the Atrocities Act by ActNo. 1 of 2016 w.e.f. 26.1.2016, we are of the opinion that on the aforesaidground the entire criminal proceedings cannot be said to have been vitiated.Second proviso to Section 14 of the Atrocities Act which has been inserted byAct 1 of 2016 w.e.f. 26.1.2016 confers power upon the Special Court soestablished or specified for the purpose of providing for speedy trial also shall have the power to directly take cognizance of the offences under the AtrocitiesAct. Considering the object and purpose of insertion of proviso to Section 14, itcannot be said that it is not in conflict with the Sections 193, 207 and 209 of the Code of Criminal Procedure, 1973. It cannot be said that it takes away jurisdiction of the Magistrate to take cognizance and thereafter to commit the case to the Special Court for trial for the offences under the Atrocities Act. Merely because, learned Magistrate has taken cognizance of the offences and thereafter the trial/case has been committed to Special Court established for the purpose of providing for speedy trial, it cannot be said that entire criminal proceedings including FIR and charge-sheet etc. are vitiated and on the aforesaid ground entire criminal proceedings for the offences under Sections 452, 323, 325, 504, 506(2) and 114 of the Indian Penal Code and under Section 3(1)(x) of the Atrocities Act are to be quashed and set aside. It may be noted that in view of insertion of proviso to Section 14 of the Atrocities Act and considering the object and purpose, for which, the proviso to Section 14 of the Atrocities Act has been inserted i.e. for the purpose of providing for speedy trial and the object and purpose stated herein above, it is advisable that the Court so established or specified in exercise of powers under Section 14, for the purpose of providing for speedy trial directly take cognizance of the offences under the Atrocities Act. But at the same time, as observed herein above, merely on the ground that cognizance of the offences under the Atrocities Act is not taken directly by the Special Court constituted under Section 14 of the Atrocities Act, the entire criminal proceedings cannot be said to have been vitiated and cannot be quashed and set aside solely on the ground that cognizance has been taken by the learned Magistrate after insertion of second proviso to Section 14 which confers powers upon the Special Court also to directly take cognizance of the offences under the Atrocities Act and thereafter case is committed to the Special Court/Court of Session."

(emphasis supplied)

14. The same thus makes it clear that a special court or courts specified can take cognizance directly.

15. The said judgment has been relied upon by the Apex Court subsequently in the case of Ramveer Upadhyay and another vs. State of U.P. and another MANU/SC/0524/2022 and the argument of learned counsel in the said case was that the Additional District and Sessions Judge had no jurisdiction to takecognizance or issue summons or orders, has been held that it cannot be sustained. Paras-21, 22 and 23 of the said judgment are quoted herein-below:-

21. Emphasizing Section 14 of the Atrocities Act, Mr. Ranjit Kumar argued that only the Special Judge under the Atrocities Act was competent to pass an order for issuance of summons. He argued that the order of the Additional District and Sessions Judge, Court No. 2, Hathras being without jurisdiction the High Court should have quashed the same in exercise of its power under Section 482 of the Cr.P.C. Mr. Ranjit Kumar also argued that Complaint Case No. 19/2018 patently a case of malicious prosecution which stemmed from political rivalry and was in gross abuse of the process of Court.

22. In Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari and others: MANU/SC/0983/2021, cited by Mr. Siddharth Dave, learned senior counsel, appearing on behalf of the Respondent No. 2, this Court rejected the contention that only Special Court could take cognizance of offences under the Atrocities Act and held:

23. Therefore, the issue/question posed for the consideration of this Court is, whether in a case where cognizance is taken by the learned Magistrate and thereafter the case is committed to the learned Special Court, whether entire criminal proceedings can be said to have been vitiated considering the second proviso to Section 14 of the Atrocities Act which was inserted by Act 1 of 2016 w.e.f. 26.1.2016?

24. While considering the aforesaid issue/question, legislative history of the relevant provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, more particularly, Section 14 pre-amendment and post amendment is required to be considered. Section 14 as stood pre-amendment and post amendment reads as under:

.......

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.

XXXX

28. Considering the aforesaid legislative history which brought to insertion of proviso to Section 14 of the Atrocities Act, by which, even the Special Court so established or specified for the purpose of providing for speedy trial the power to directly to take cognizance of offences under the Atrocities Act, 1989, the issue/question posed whether in a case where for the offences under Atrocities Act, the cognizance is taken by the learned Magistrate and thereafter the case is committed to the Court of Sessions/Special Court and cognizance is not straightway taken up by the learned Special Court/Court of Session, whether entire criminal proceedings for the offences under the Atrocities Act, 1989 can be said to have been vitiated, as so observed by the High Court in the impugned judgment and order?

29. On fair reading of Sections 207, 209, and 193 of the Code of Criminal Procedure and insertion of proviso to Section 14 of the Atrocities Act by Act No. 1 of 2016 w.e.f. 26.1.2016, we are of the opinion that on the aforesaid ground the entire criminal proceedings cannot be said to have been vitiated. Second proviso to Section 14 of the Atrocities Act which has been inserted by Act 1 of 2016 w.e.f. 26.1.2016 confers power upon the Special Court so established or specified for the purpose of providing for speedy trial also shall have the power to directly take cognizance of the offences under the Atrocities Act. Considering the object and purpose of insertion of proviso to Section 14, it cannot be said that it is not in conflict with the Sections 193, 207 and 209 of the Criminal Procedure Code, 1973. It cannot be said that it takes away jurisdiction of the Magistrate to take cognizance and thereafter to commit the case to the Special Court for trial for the offences under the Atrocities Act. Merely because, learned Magistrate has taken cognizance of the offences and thereafter the trial/case has been committed to Special Court established for the purpose of providing for speedy trial, it cannot be said that entire criminal proceedings including FIR and charge-sheet etc. are vitiated and on the aforesaid ground entire criminal proceedings for the offences under Sections 452, 323, 325, 504, 506(2) and 114 of the Penal Code, 1860 and under Section 3(1)(x) of the Atrocities Act are to be quashed and set aside. It may be noted that in view of insertion of proviso to Section 14 of the Atrocities Act and considering the object and purpose, for which, the proviso to Section 14 of the Atrocities Act has been inserted i.e. for the purpose of providing for spedy trial and the object and purpose stated herein above, it is advisable that the Court so established or specified in exercise of powers under Section 14, for the purpose of providing for speedy trial directly take cognizance of the offences under the Atrocities Act. But at the same time, as observed herein above, merely on the ground that cognizance of the offences under the Atrocities Act is not taken directly by the Special Court constituted under Section 14 of the Atrocities Act, the entire criminal proceedings cannot be said to have been vitiated and cannot be quashed and set aside solely on the ground that cognizance has been taken by the learned Magistrate after insertion of second proviso to Section 14 which confers powers upon the Special Court also to directly take cognizance of the offences under the Atrocities Act and thereafter case is committed to the Special Court/Court of Session.

30. In support of the above conclusion, the words used in second proviso to Section 14 are required to be considered minutely. The words used are "Court so established or specified shall have power to directly take cognizance of the offences under this Court". The word 'only' is conspicuously missing. If the intention of the legislature would have to confer the jurisdiction to take ognizance of the offences under the Atrocities Act exclusively with the Special Court, in that case, the wording should have been "that the Court so established or specified only shall have power to directly take cognizance of offences under this Act". Therefore, merely because now further and additional powers have been given to the Special Court also to take cognizance of the offences under the Atrocities Act and in the present case merely because the cognizance is taken by the learned Magistrate for the offences under the Atrocities Act and thereafter the case has been committed to the learned Special Court, it cannot be said that entire criminal proceedings have been vitiated and same are required to be quashed and set aside."

Thus, the law which has been mentioned herein-before, is sufficient enough to demonstrate that taking of cognizance by the Special Court is in addition to the power conferred on the Magistrate for the purpose of taking cognizance and even if the cognizance has been taken by the Magistrate erroneously, as is usually taken in all the cases triable by the Court of Session an accused person may not feel prejudiced as at an appropriate stage, the case may be committed to the Court of Sessions and ultimately it has to be tried by the Court of Sessions/Special Court. Here the pivot question is of prejudiceness which may be caused to the appellants/accused persons, which according to the understanding of this Court is not being caused to the instant appellants. The appellants are admittedly not appearing before the Magistrate for the last so many years and, thus, simply on the basis that the case is pending before the Court of Magistrate probably only due to the absence of the appellants/accused persons, as the same could only be committed after the appearance of the appellants, I do not find any substance in the submissions made by learned counsel for the appellants, and the same are liable to be rejected.

Resultantly, having regard to the law and facts discussed herein-before, the appeal appears to be devoid of merits and is dismissed as such.

Order Date :- 10.5.2023

Praveen