This article is written by Kashish Grover, from Symbiosis Law School Noida.
‘The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989’ which was enacted to prevent atrocities against Scheduled Castes and Scheduled Tribes brought a new vision to Indian Judiciary. The Act, not only deals with punishments for atrocities, but also prescribes comprehensive measures for protection, welfare and rehabilitation of the victims of the atrocities.
For the effective implementation of the Act, the government has set up different administrative agencies, right from State level to district levels. They are the establishment of Vigilance and Monitoring Committees, Special Courts, Special Public Prosecutors etc. The government servants are made responsible, if they fail to perform their official duties under this Act. Government Officers are also liable for penal punishment under this Act if they fail to perform their duties assigned to them under this Act. The Governments, more particularly the Central Government are allocating financial resources for implementation of the Act.
Government Power to Setting up of Special Courts
This power comes to the government by Section 14 of the act. Special Courts have been set up by state governments for the purpose of providing for speedy trials. They are set up almost in each district to try the offence under this Act. It is empowered to constitute a Court of Session to be a Special Court.
The conditions for such notification are:
- With the concurrence of Chief Justice of High Court; and
- Notified in the official gazette.
The Court of Sessions has been given the power to conduct the trial and no other court is allowed under this act. However, the trial is only valid when it is on committal of case by the Court of Magistrate having jurisdiction of it.
The Special Court doesn’t have the jurisdiction to entertain a complaint without committal by magistrate Court. In Raj Mal v. Ratan Singh, it was held under Section 14 of the act that a special Court has power to take cognizance of the case and the case need not be preceded by committal of case by Magistrate. The court further observed that the learned counsel for the respondent accused of course, contends that the Special Judge had no jurisdiction to take cognizance of the complaint directly. According to him, though he has been constituted as a Special Judge to punish offences punishable under the Act, he could take cognizance of only such offences as are committed by the Magistrate in accordance with the provisions of the Code of Criminal Procedure.
In this connection, he relied upon a decision of Single Judge of Allahabad High Court in Mangli Prasad vs. Additional Sessions Judge[i] which supports this contention of the learned counsel for the petitioner. But a single Judge of this Court in Davinder Singh Sarpanch vs. State of Punjab[ii]has taken the view that the Judicial Magistrate has no jurisdiction to entertain the complaint under this Act whereas the Special Court constituted under section 14 of the Act can entertain the complaint and take cognizance and that it is not necessary that the case must be committed to the Special Court by Magistrate as in other Sessions cases. This Court has held accordingly after taking into consideration various provisions of the Act, with which I respectfully agree. There is also the Full Bench decision of the Kerala High Court in Hareendran vs. Sarada[iii] wherein also, the same view as has been taken by this Court, has been taken.
Agreeing with the view of this Court and the Kerala High Court, with respect, the court disagreed with the view taken by the learned single Judge of the Allahabad High Court in Mangli Prasad vs. Additional Sessions Judge[iv] and the court held that it is not necessary that the case should be committed to the Special Court by a Magistrate to entitle the Special Court to take cognizance of the offences under the Act. But on the same point of law the Andhra Pradesh High Court in Ammula Raji Reddy vs. State of A.P.[v] held that under section 14 of SC & ST (PoA) Act, 1989, the Special Judge cannot take cognizance of offence by way of taking charge sheet straightaway without committal of case from concerned Magistrate.
The Court further observed that “In Moly vs. State of Kerala[vi], the Supreme Court, while considering the scope of S.14 of the SC/ST Act and following Vidydharan and Gangula Ashok vs. State of A.P.[vii] held “The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as a Special Court is to ensure speed for such trials. ‘Special Court’ is defined in the Act as ‘a Court of Session specified as a Special Court in S.14.
Thus, the Court of Session is specified to conduct a trial and no other Court can conduct the trial of offences under the Act. In view of S.193 of the Code of Criminal Procedure, unless it is positively and specifically provided differently, no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate. Neither in the Code nor in the Act is there any provision whatsoever, nor given by implication, that the Special Court of Session (Special Court) can take cognizance of the offence under the Act as Court of original jurisdiction without the case being committed to it by a Magistrate. If that be so, there is no reason to think that the charge sheet or a complaint can straightway be filed before such a Special Court for offences under the Act.”
Though the Full Benches of Kerala and Rajasthan High Court held that the committal proceedings are not warranted in a case coming under the SCs and STs (Prevention of Atrocities) Act, the subsequent judgments of the Supreme Court, as mentioned above, reiterated that a complaint or a charge sheet cannot be straightaway laid before the Special Court under the Act. In the case on hand, the charge-sheet was admittedly filed before the Special Court and the said Court took cognizance of the offence and after framing of the charges proceeded with the trial. In the light of the above legal position, the court had no hesitation to hold that the Special Judge cannot take cognizance of the offence by way of taking the charge sheet straightaway without committal of the case from the concerned Magistrate.
But again the Karnataka High Court in M.B.Ramachandran & another vs. State[viii], SC & ST (PoA) Act 1989, the Special Court is empowered to take cognizance and try offences u/s 3 as a court of original jurisdiction and need for committal by Magistrate of Karnataka held that under Sec.14 (Karnataka Amendment by Act 35 of 2003) of SCs & STs (PoA) Act 1989, the Special Court is empowered to take cognizance and try offences u/s 3 as a court of original jurisdiction and need for committal by Magistrate has been done away with by amendment. The court further observed that the judgment of the Apex Court rendered in Gangula Ashok vs. State of Andhra Pradesh is based on the original Act as it stood before amendment. The provision having been amended subsequently, wherein the need for committal by the Magistrate has been done away with. By the said Amendment the Special Court was empowered to take the cognizance and try such offences as a Court of original jurisdiction.
On the same point the Madhya Pradesh High Court in Bhagwan Singh and others vs. State of Madhya Pradesh24 held that Section 3(1)(xv) of SCs & STs (PoA) Act, 1989 and sections 426, 451, 323, 34 of IPC and u/Rule 07 of SCs & STs (PoA) Rules, committal proceedings are mandatory in nature, but, non-compliance will not vitiate entire trail but vitiate trail relating to offences under Atrocities Act.
The Calcutta High Court in S.K. Devanath alias Sampangi and others vs. State of West Bengal held that ‘A Special Court constituted under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 essentially being a Sessions Court not an original Court is not empowered under section 190 of the code of Criminal Procedure to take cognizance of any offence punishable under the said Act without the case being committed to it. The Court further held that “thus a special court constituted under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 essentially being a Sessions Court and not an original Court is not empowered.
Under Section 190 of the Code of Criminal Procedure to take cognizance of any offence punishable under the said Act without the case being committed to it. Consequently, as the Special Court has no jurisdiction to take cognizance under Section 190 of the Code of Criminal Procedure in respect of any offences punishable under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The trail cannot be said to get vitiated because Special Judge directly took cognizance without there being committal proceeding.
The Chhattisgarh High Court in Mahendra Kumar Vs. State of Chhattisgarh held that “In view of the law laid down by the Supreme Court in Bhooraji’s case, I am of the considered view that the first submission, though on the face of it looks very attractive, but upon close scrutiny I found it to be without substance or merit. In the present case, the appellant had failed to point out any prejudice or disadvantage when the Special Judge (Specified Judge) took cognizance of the case without any committal order on the basis of legal position adopted by the Full Bench of the M.P. High Court. The procedural lapse would not render the Specified Judge incompetent to take cognizance. Now the rule position is that a Special Court is not empowered to take cognizance of a complaint without the case being committed to it.
Appointment of Public Prosecutor
For every Special Court, the State Government shall, by notification in the Official Gazette, specify a Public Prosecutor or appoint an advocate who has been practicing as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in the Court. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules 1995, R.4(5) provides for appointment of advocate of choice of victim of atrocity who is also in opinion of District Magistrate an eminent senior advocate. Appointment of senior advocate as Special Public Prosecutor for conducting trial at instance of victim.
There is no conflict between R. 4(5) of Rules and Section 15 of the Act. In Satki Devi V. Tikam Singh on this point the Court held that the State no doubt, is the prosecutor and the prosecution in all cases and trial in all cases is to be conducted in the Court of Session by Public Prosecutor or Special Public Prosecutor, as the case may be appointed by the Government but the SCs & STs (Prevention of Atrocities) Act is a special statue which overrides any other law for the time being in force, Plea was raised that, the District Magistrate is empowered to appoint an advocate to plead the case of complainant but he has no power to appoint Special Public Prosecutor, and that the power to appoint Special Public Prosecutor under S. 15 of the Act vests in the State Government which cannot be delegated. The Special Public Prosecutor appointed under Section 15 of the Act vests in the State Government which cannot be delegated. The Special Public Prosecutor appointed under Section 15 of the Act alone can conduct the case. It is true that sub-rule (5) does not lay down any qualification as to the minimum length of practice unlike S. 15 or sub-rule (1) of Rule 4 but, apparently, framers of the rule did not want to put any restriction on the choice of the victims of atrocity subject to the embargo that the person should be an ‘eminent senior advocate’ – a term used in sub-rule (1) of rule 4 as well. Thus, the advocate should be of the choice of victim of atrocity and also in the opinion of the District Magistrate/Sub-Divisional Magistrate, an eminent senior advocate. There is no conflict between sub-rule (5) of Rule 4 and Section 15 of the Act.
[i] (1996) 3 Rec Cri R 768: (1996 Cri LJ 3596)
[ii] (1997) 3 Rec Cri R 575
[iii] (1995) 2 Rec Cri R 19
[iv] (1996) 3 Rec. R 768: Cri. (1996 Cri LJ 3596)
[v] 2005 CRI. L.J. 220
[vi] 2004 Cri L.J. 1812 SC (Ker): AIR 2004 SC 1890
[vii] (2002) 2 SCC 504: 2000 SCC (Cri) 488: 2000 Cri LJ 819
[viii] 2007 CRI. L.J. 489
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