Dinesh Singh Bais vs Chhotelal
2021 Latest Caselaw 828 MP

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         THE HIGH COURT OF MADHYA PRADESH
                   MCRC No.11064/2020
              Dinesh Singh Baish vs. Chhotelal

Gwalior, Dated : 18.03.2021

      Shri Anil Kumar Mishra, Counsel for the applicant.

      Shri Dharmendra Rishishwar, Counsel for the respondent.

This application under Section 482 of Cr.P.C. has been filed for

quashment of RCT No.1012/2012 pending before the Court of JMFC,

Bhind.

2. It is the case of the applicant that the respondent has filed a

private complaint for offence under Sections 166, 323, 294, 506 Part-

II of IPC and under Section 3(1) and 3(2)(vii) of Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act on the allegation

that on 23.1.2012, a family member of the respondent met with a

vehicular accident. Although the distance of the police station from

the place of accident was very near but the police did not reach for

many hours. The injured was lying there for several hours, therefore,

he died due to which the crowd gathered and highway was blocked.

When the applicant along with other persons reached on the spot,

then several persons behaved rudely with them and the complainant

was also standing nearby the dead body of the deceased. Thereafter,

on 23.1.2012 at about 5:00 PM when the respondent was returning

back from the market and when he reached in front of the police

Station Phoop, then Pramod Singh Bhadoriya caught hold him and

took him to the police station, where the present applicant was also

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present. The applicant and Pramod Singh Bhadoriya started abusing

the respondent and humiliated him by calling him by his caste name.

The applicant assaulted the respondent by stick on his head due to

which blood started oozing out. Pramod Singh Bhadoriya slapped

him. It was further alleged in the complaint that the applicant and

other co-accused persons also threatened the respondent that he

would be detained. Thereafter Balakram, Asharama and Bhogiram

came inside the police station and saw the entire incident. Thereafter,

a complaint was submitted to the higher authorities but no action was

taken and, accordingly, a private complaint under Sections 166, 323,

294, 506 Part-II of IPC and under Sections 3(1)(x), 3(2)(vii) of

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act was filed and the JMFC has taken cognizance of the same and

has issued a arrest warrant on 19.7.2017.

3. Challenging the order passed by the Court below, it is

submitted by the counsel for the applicant that the Magistrate is not

competent to take cognizance of offence under Section 3(1)(x) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act. It is argued that only the Special Judge is competent to take

cognizance of the offence punishable under Section 3(1)(x) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, therefore, the order taking cognizance is beyond the competence

THE HIGH COURT OF MADHYA PRADESH MCRC No.11064/2020 Dinesh Singh Baish vs. Chhotelal

of the Magistrate.

4. To buttress his contentions, the counsel for the applicant has

relied upon the judgment passed by the Supreme Court in the case of

Moly & Anr. vs. State of Kerala reported in (2004) 4 SCC 584,

Rattiram & Ors. vs. State of M.P. reported in (2012) 4 SCC 516

and the judgment passed by the Jharkhand High Court in the case of

Dhiraj Kumar vs. State of Jharkhand reported in (2018) 1 JLJR

324.

5. Per contra, the respondent has supported the order passed by

the Court below.

6. The moot question for determination is as to whether the

Magistrate has power to entertain a criminal complaint for offence

under Section 166,323,294,506 (Part II) of I.P.C. and under Section

3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act or not?

7. The important aspect of the matter is that the complaint was

filed on 30-1-2012 and the summons were issued by C.J.M., Bhind

on 5-7-2012.

8. The Supreme Court in the case of Gangula Ashok Vs. State of

A.P. reported in (2000) 2 SCC 504 has held as under :

16. 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

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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.

The Supreme Court in the case of M.A. Kuttappan v. E.

Krishnan Nayanar, reported in (2004) 4 SCC 231 has held as

under :

10. In view of the aforesaid decisions of this Court it could not be contended before us that the Special Judge had jurisdiction to entertain the complaint directly and to issue process after taking cognizance without the case being committed to it by a competent Magistrate. The question is no longer res integra and, therefore, it must be held that the learned Special Judge in the instant case erred in entertaining a complaint filed before it and in issuing process after taking cognizance without the case being committed to it for trial by a competent Magistrate. Though the High Court has quashed the proceeding on a different ground altogether, we are satisfied that the impugned order of the Special Judge deserves to be set aside so far as it related to its taking cognizance of an offence under the 1989 Act, and issuing process on the basis of the complaint directly made before it by the complainant.

The Supreme Court in the case of Rattiram and others Vs.

State of M.P., reported in (2012) 4 SCC 516 has held as under :

9. The questions that emanate, as a natural corollary, for consideration are whether the Special Court as constituted under the Act is a Court of Session; and whether there is any special provision in the Act enabling the said court to take cognizance.

10. In Gangula Ashok a two-Judge Bench of this Court, after taking note of Section 6 of the Code and Section 14 of the Act, came to the conclusion that the intendment of the legislature is to treat the Special

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Court under the Act to be a Court of Session even after specifying it as a Special Court and it would continue to be essentially a Court of Session and not get denuded of its character or power as a Court of Session. The Court scanned the anatomy of the Act and analysed the postulates contained in Sections 4 and 5 of the Code and thereafter, referring to the Constitution Bench decisions in A.R. Antulay v. Ramdas Sriniwas Nayak and in Directorate of Enforcement v. Deepak Mahajan, expressed thus: (Gangula Ashok case, SCC p. 510, para 16) "16. 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 straightaway be laid down before the Special Court under the Act."

11. In Vidyadharan the Court delved into the said issue and eventually proceeded to state as follows: (SCC p. 224, para 23) "23. 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 straightaway be laid down before the Special Court under the Act. We are reiterating the view taken by this Court in Gangula Ashok v. State of A.P. in the 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."

The aforesaid view was reiterated in Moly.

12. In M.A. Kuttappan v. E. Krishnan Nayanar another two-Judge Bench ruled that the Special Judge under the Act cannot entertain a complaint filed before it and issue process after taking cognizance without the case being committed to it for trial by the competent Magistrate. It is apt to mention here that

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similar view has been spelt out in Bhooraji.

13. After a careful perusal of the aforesaid decisions, we have no scintilla of doubt that the view expressed which has a base of commonality is absolutely correct and there is no necessity to dwell upon the same more so when there is no cavil or conflict in this regard and there has been no reference on the said score. Additionally, no doubt has been expressed relating to the exposition of the said view, and irrefragably correctly so.

However, Section 14 of Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (In short Act 1989) was

amended by amendment Act No. 1 of 2016 and now Section 14 of

Act, 1989 reads 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

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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.

9. It is also not out of place to mention here that, earlier The

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Amendment Ordinance, 2014 was promulgated on 4-3-2014, thereby

amending Section 14 of Act, 1989, but since, its life was six months,

therefore, it expired.

10. Thus, the legal position after 1-1-2016 is that the Special Judge

is competent to take cognizance of the offence as a Court of original

jurisdiction, and the complaint before the Magistrate would not be

maintainable.

11. However, in the present case, the complaint was filed on 30-1-

2012 and the summons were issued by the Magistrate on 5-7-2012,

and in view of the legal position which was prevailing on 5-7-2012

in the light of the judgments passed by the Supreme Court in the case

of Gangula Ashok (Supra), M.A. Kuttapan (Supra) and Rattiram

(Supra), the complaint was not maintainable before the Court of

Special Judge, as he was not competent to take cognizance of the

offence as a Court of Original Jurisdiction and could have taken

cognizance only after the case is committed to it.

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12. Accordingly, it is held that the complaint for offence under

Section 3(1)(x) of Act 1989, was maintainable before the Magistrate

at the relevant time (i.e., in the year 2012). However, the Magistrate

is required to commit the case to the Court of Special Judge.

13. As, the Magistrate could not have committed the case to the

Court of Special Judge, without the appearance of the applicants,

accordingly, it is held that the C.J.M., Bhind did not commit any

illegality by entertaining the complaint and issuing summons.

14. No arguments on the merits of the case have been advanced.

15. It appears that the applicant has not appeared before the

C.J.M., Bhind so far. Therefore, it is directed that the applicant shall

appear before the C.J.M., Bhind on 23-4-2021, and the C.J.M. Bhind,

shall commit the case to the Court of Special Judge, Bhind for trial.

16. With aforesaid observations, the application filed by the

applicant is disposed of.

(G.S. Ahluwalia) Judge (alok)

Digitally signed by ALOK KUMAR Date: 2021.03.23 18:32:49 +05'30'