Rajasthan High Court - Jodhpur

Sardari Lal vs State on 17 October, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 940/2020

Sardari Lal S/o Shri Puranmal, Aged About 70 Years, Gram Sundanpur, Police Station Sadar Banswara, District Banswara, Rajasthan.

----Appellant Versus

1. State, Through P.P.

2. Girish Chandra S/o Daya Lal, Aged About 49 Years, By Caste Upadhaya Brahman, R/o Talwada, Police Station Sadar, District Banswara, Rajasthan.

3. Praveen Rawal S/o Dev Chandra Rawal, Aged About 52 Years, By Caste Rawal Brahman, R/o Police Station Sadar, District Banswara, Rajasthan.

4. Anil Kumar S/o Daya Lal, Aged About 40 Years, By Caste Upadhaya Brahman, R/o Talwada, Police Station Sadar, District Banswara, Rajasthan.

5. Mukesh Kumar S/o Daya Lal, Aged About 38 Years, By Caste Upadhaya Brahman, R/o Talwada, Police Station Sadar, District Banswara, Rajasthan.

6. Rajesh Kumar S/o Daya Lal, Aged About 42 Years, By Caste Upadhaya Brahman, R/o Talwada, Police Station Sadar, District Banswara, Rajasthan.

7. Gomati Shankar S/o Nand Kishore, Aged About 53 Years, By Caste Brahman, R/o Talwada, Police Station Sadar, District Banswara, Rajasthan.

                                                                ----Respondents



For Appellant           :     Mr. Ashok Kumar Choudhary
For Respondents         :     Mr. Mahipal Bishnoi, PP
                              Mr. Mahendra Trivedi

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 29/09/2022 Pronounced on 17/10/2022

1. This Criminal Appeal under Section 14-A (1) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

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Act, 1989 (hereinafter referred to as 'Act of 1989) has been

preferred claiming the following reliefs: -

"It is therefore most humbly and respectfully prayed that this Criminal Appeal may kindly be allowed, and the order dated 26.08.2020 may kindly be quashed and set aside (Annexure-1) and the learned Special Court may kindly be directed to take cognizance of the offence and proceed as per law to the trial".

2. Brief facts of the case, as placed before this Court by the

learned counsel for the appellant, are that the appellant filed a

complaint against the private respondents before the learned

Additional Chief Judicial Magistrate, Banswara on 06.07.2011,

alleging therein that the appellant was having agricultural lands in

Khasra nos. 1487/992, 1489/992, and 1490/992 in Sundanpur

village, Dist. Banswara and accused/respondents no. 2 to 7-

trespassed on the said lands of the appellant on 03.07.2011, and

that they hurled caste-based abuses against the appellant's

mother and sister. And that the accused-respondents no. 2 to 7

forcefully dispossessed the appellant from his lands. Upon receipt

of such complaint, the learned Magistrate forwarded the same

under Section 156(3) Cr.P.C., to Police Station Sadar, Banswara,

and directed the police to conduct the necessary investigation.

2.1. Thereafter, an FIR, bearing No.189/2011 was registered

before the Police Station Sadar, Banswara under Sections 147, 447

& 427 of IPC, and Section 3 (1)(iv)(v)(x) of the Act of 1989.

2.2. Thereafter, the concerned police authorities conducted the

investigation, and filed a Negative Final Report/Closure Report

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bearing No.39/2013 dated 31.07.2011, before the learned

Magistrate, whereupon the appellant submitted a protest petition

against the said report, and thereafter, the learned Magistrate vide

order dated 08.04.2015, took cognizance against the accused-

respondents no. 2 to 7, under Sections 147, 447, 427, read with

Section 149 of IPC and Section 3 (iv), (v) of the Act of 1989.

2.3. Being aggrieved by the aforementioned cognizance order,

the accused-respondents no. 2 to 7 filed a revision before the

learned revisional court, and vide the impugned order dated

26.08.2020, the said revision was partly allowed, and while

quashing and setting aside the cognizance order dated

08.04.2015, the matter was remanded to back the learned

Magistrate, for hearing the same afresh.

3. Learned counsel for the appellant submitted that the

impugned order passed by the learned revisional court is

unsustainable in the eye of law, as it runs contrary to the law and

against the very object behind enactment of the Act of 1989, as a

special legislation.

3.1 It was further submitted that for the purpose of taking

cognizance under the Act of 1989, the Union Legislature conferred

certain powers upon the Special Courts, vide the amendments

made under the said Act of 1989, and more particularly, the

amendment incorporated in Sections 14 and 14-A of the said Act,

w.e.f. 26.01.2016.

The said Sections 14 & 14-A of the SC/ST Act, as stand after the

amendment, read as under:

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"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.

14A. Appeals.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.

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(2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail. (3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days: Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days. (4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal."

4. Learned counsel for the appellant, therefore, submitted that

in light of the aforesaid backdrop, the impugned order passed by

the learned Court below be quashed and set aside.

5. Learned counsel for the appellant relied upon the judgment

rendered by the Hon'ble Apex Court in the case of Securities and

Exchange Board of India Vs. Classic Credit Ltd. (Criminal

Appeal No.67/2011, decided on 21.08.2017).

6. On the other hand, learned Public Prosecutor as well as

learned counsel for the private respondents opposed the aforesaid

submissions made on behalf of the appellant.

7. Learned Public Prosecutor relied upon the judgment rendered

by the Hon'ble Apex Court in the case of Shantaben Bhurabhai

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Bhuriya Vs. Anand Athabhai Chaudhari & Ors. (Criminal

Appeal No.967/2021, decided on 26.10.2021, relevant portion

of which reads as under:

"9. 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?

9.1 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 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

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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 Section14, 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.

9.2 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 cognizance of the offences under the Atrocities Act exclusively with the Special Court, in that case, the wording should have been "that the Court so

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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.

10. Even the aforesaid aspect is also required to be considered from another angle i.e. theory of prejudice to the accused. In the case of Rattiram and Ors (supra), in which, this Court had an occasion to consider Section 14 of the Atrocities Act (pre amendment) has specifically observed and held that (1) under the Code of Criminal Procedure, 1973 in the committal proceedings, the Magistrate is only required to see whether offence is exclusive triable by the Court of Session; (2) the limited jurisdiction conferred on the Magistrate under Section 209 of the Code of Criminal Procedure is only to verify the nature of the offences ; (3) after having satisfied of verifying the nature of the offences that the offences triable exclusively by the Court of Sessions, he shall commit the case to the Court of Sessions; (4) because of restricted role assigned to the Magistrate at the stage of committal under the new Code, the non-compliance with the same and raising of objection in that regard after conviction attracts the applicability of the principles of "failure of justice" and the convict becomes obliged in law to satisfy the Appellate Court that he has been prejudiced and deprived of a fair trial or there has been miscarriage of justice; (5) it would be a totally inapposite and inappropriate to hold that such non-compliance vitiates the trial.

11. The issue involved in the present appeal is also required to be considered from another angle. The accused

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is to be tried for the offences under the Atrocities Act by Special Court / Exclusive Special Court constituted under Section 14 of the Atrocities Act. Even those rights are also available to the victim for the offences under the Atrocities Act in which the trial is by the Special Court/Exclusive Special Court constituted under Section 14 of the Atrocities Act. Therefore, unless and until those rights which flow from Section 14 of the Atrocities Act are affected, the accused cannot make any grievance and it cannot be said that taking cognizance by the learned Magistrate for the offences under the Atrocities Act and thereafter to commit the case to the Special Court, he is prejudiced.

12. Even considering Section 460 of the Code of Criminal Procedure, if any Magistrate not empowered by the law to take cognizance of an offence under clause (a) or clause

(b) of sub-section (1) of Section 190, takes cognizance, such irregularities do not vitiate proceedings. At the most, it can be said to be irregular proceedings for which, it does not vitiate the proceedings. In view of the above and for the reasons stated above, the view taken by the High Court that as in the present case the learned Magistrate has taken cognizance for the offences under the Atrocities Act and thereafter the case is committed to the learned Special Court and therefore, entire criminal proceedings are vitiated, cannot be accepted and is unsustainable. If on the aforesaid ground entire criminal proceedings are quashed, in that case, it will be given a premium to an accused who is alleged to have committed the offence under the Atrocities Act. Assuming for the sake of argument that the procedure adopted is irregular, in that case, why should victim who belonged to Scheduled Castes and Scheduled Tribes community be made to suffer.

13. Even the impugned judgment and order passed by the High Court quashing and setting aside the entire criminal proceedings is unsustainable. The allegation against the accused were for the offences under the Indian Penal Code also along with for the offences under the Atrocities Act. By the impugned judgment and order, the

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High Court has not only quashed and set aside the proceedings under the Atrocities Act but for the offences under the Indian Penal Code also, which is not permissible. We fail to appreciate how the criminal proceedings for the offences under the Indian Penal Code could have been set aside by the High Court while considering Section 14 of the Atrocities Act.

16. In view of the above and for the reasons stated above, the impugned judgment and order dated 09.05.2019 passed by the High Court of Gujarat passed in Special Criminal Application No.5670 of 2017 quashing and setting aside the entire criminal proceedings for the offences punishable under Sections 452, 323, 325, 504(2) and 114 of the Indian Penal Code and under Section 3(1)

(x) of the Atrocities Act, in exercise of powers under Section 482 of the Code of Criminal Procedure r/w Article 226 of the Constitution of India is hereby quashed and set aside. Now, accused be tried by the learned Special Court having jurisdiction for the aforesaid offences. Present appeal is allowed to the aforesaid extent."

8. Heard learned counsel for the parties as well as perused the

record of the case, alongwith the judgments cited at the Bar.

9. Without going into the merits of the case, but prima facie

looking into the factual and legal matrix which surround the case,

and as settled by the Hon'ble Apex Court in the case of

Shantaben Bhurabhai Bhuriya (supra), this Court observes

that a Special Court so established for a specific purpose shall

have power to directly take cognizance of the concerned offences.

It is also a settled position that the same does not take away the

power of the learned Trial Court to take cognizance for such

offences. However, this Court observes that after taking of such

cognizance, the legislative intent behind enacting the special

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legislation, like the Act of 1989, is that the learned Trial Court

ought to have committed the case, for necessary adjudication and

trial, to the competent Court, which was not done in the present

case. The Hon'ble Apex Court in case of the Ramveer Upadhyay

& Anr. Vs. State of U.P. & Anr. (Special Leave Petition (Crl.)

No.2953/2022), decided on 20.04.2022, reitenated the position

of law as laid down in case of the Shantaben Bhurabhai

Bhuriya (Supra).

10. This Court further observes that Sections 190 and 460

Cr.P.C. govern the power of taking cognizance by the competent

Courts, and in the case that such cognizance is taken erroneously,

but in good faith, as under Section 190 sub section (1) clauses (a)

and (b) then such proceedings are not vitiated in light of the

exceptions carved out under Section 460 of the Code.

The said Sections read as follows:-

190. Cognizance of offences by Magistrates.--(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-

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section (1) of such offences as are within his competence to inquire into or try

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. In view of the above, the present petition is partly allowed,

while quashing and setting aside the impugned order dated

26.08.2020 passed by the learned revisional Court. And, as an

upshot of the above discussion and taking into consideration the

fact that the entire record of the case at hand is presently in the

custody of the Court of the learned Additional Chief Judicial

Magistrate, Banswara, this Court directs the learned Additional

Chief Judicial Magistrate, Banswara to commit the matter to the

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court of competent jurisdiction, and the competent court shall

thereafter, proceed strictly in accordance with law, and while

keeping into consideration the aforementioned provisions of law,