http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  450 of 1997

PETITIONER: M.A. Kuttappan

RESPONDENT: E. Krishnan Nayanar and another

DATE OF JUDGMENT: 26/02/2004

BENCH: N. SANTOSH HEGDE & B.P. SINGH.

JUDGMENT: J U D G M E N T

B.P. Singh, J.

       The appellant in this appeal by special leave is aggrieved  by the order of the High Court of Kerala at Ernakulam in Crl.  M.C. No. 2192 of 1996 dated 21st February, 1997 whereby a  learned Judge of the High Court while allowing the application  filed under Section 482 of the Code of Criminal Procedure  quashed the order of the Special Judge, Thalassery whereby he  had taken congnizance of the offences under Section 3(1)(x) of  the Scheduled Castes and Scheduled Tribes (Prevention of  Atrocities) Act, 1989 (hereinafter referred to as the ’1989 Act’   and Section 7 (1)(d) of the Protection of Civil Rights Act, 1955.   The High Court held that none of the offences above mentioned  were made out on the basis of the complaint and the material  placed before the learned Special Judge.

       In view of the order, which we propose to make, it is  neither necessary nor advisable to refer to the facts of the case  in detail lest it may prejudice the case of the parties in any  proceedings in future. However it is necessary to briefly  recapitulate the broad facts which give rise to the instant appeal.           The appellant herein, the complainant, claiming to be a  Member of the Kerala Legislative Assembly and belonging to a  Scheduled Caste known as ’Pathiyan’ and practicing as a doctor  by profession owing allegiance to the Indian National Congress  (I) filed a complaint in the Court of the Special Judge for the  trial of offences under Act 33 of 1989 at Thalassery.  In his  complaint he alleged that respondent No.1 belongs to Nair  community, which is not a scheduled caste, was a prominent  leader of the Communist Party of India (Marxists).  He at the  relevant time held the office of Chief Minister of the State of  Kerala and was contesting bye-election to the Kerala  Legislative Assembly from the Thalassery Assembly  Constituency.  A Convention of the Left Democratic Front was  convened on September 20, 1996 in the evening at the Town  Bank Auditorium, Thalassery in which  respondent No.1      made a speech wherein he made certain disparaging   observations wilfully and deliberately emphasizing the fact that  the complainant belongs to a lower and inferior category of  MLA being a member of a scheduled caste.  Respondent No.1  emphasised the fact that the appellant was a Harijan and made  derogatory remarks about the complainant.  This was done in  full view of the public assembled in the Auditorium.   Respondent No.1 is alleged to have stated as follows :-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

"There is an MLA. Kuttappan, that Harijan MLA,  he climbed over the table and was dancing.  Is this  the democratic manners of Antony? "                This was the statement attributed to respondent No.1 by  witness No.1 examined on behalf of the appellant.  According  to the complainant respondent No.1 stated :- "the other thing, that Harijan, one Kuttappan, he   was dancing on the table".   Though there is a slight variance about the exact words  used by respondent No.1, the statement was to this effect.   

       The learned Special Judge on a consideration of the  statement of the complainant on oath and the statements of two  other witnesses examined before it, came to the conclusion that  in the facts and circumstances of the case, the commission of an  offence under Section 3(1)(x) of the 1989 Act and under  Section 7(1)(d) of the Protection of Civil Rights Act was made  out.  He, therefore, took cognizance of the aforesaid offences  and issued process summoning respondent No.1 to stand trial.       

       The order of the Special Judge Thalassery was  challenged by respondent No.1 before the High Court which by  its impugned order quashed the order of the Special Judge  taking cognizance, finding that no offence was made out under  either of the two Acts.  Aggrieved by the judgment and order of  the High Court the appellant has preferred this appeal by special  leave.  At the threshold counsel for respondent No.1 submitted  that the Court of Special Judge constituted under the 1989 Act  had no jurisdiction to entertain the complaint, take cognizance  and issue process against respondent No.1.  Relying upon the  decisions of this Court it was submitted that the Special Judge  constituted for the trial of offences under the aforesaid 1989 Act  could only exercise the powers of a Session Court in  accordance with the procedures laid down under the Code of  Criminal Procedure.  It was submitted that unless an order of  committal was made by a competent Magistrate committing the  accused to stand trial before the Court of Session, the Session  Judge had no jurisdiction to try an offence under the aforesaid  Act.  He had no jurisdiction even to entertain a complaint made  before it under the aforesaid Act.  Reliance was placed on two  decisions of this Court in Gangula Ashok and another vs. State  of Andhra Pradesh : (2000) 2 SCC 504 and Vidyadharan vs.   State of Kerala  : JT  2003 (9) SC 89.  Counsel for the appellant  did not dispute the factual position that the case had not been  committed to the Special Judge for trial of respondent No.1 and  that the Special Judge entertained the complaint filed before it  and issued process against respondent No.1.

       In Gangula Ashok and another  (supra) a complaint had  been lodged against the appellants before the police and after  investigation the police filed a charge-sheet before the Special  Judge which was designated as Special Court for trial of  offences under the aforesaid Act.   The Special Judge proceeded  to frame a charge against the appellants which was challenged  before the High Court by them.  A learned Judge of the High  Court found that the procedure adopted by the Investigating  Officer in filing the charge sheet before the Special Court was  not in accordance with law and the Special Judge had no  jurisdiction to take cognizance of any offence under the Act  without the case having been committed to that Court.  In this  view of the matter the learned Judge set aside the proceedings  of the Special Court and directed the charge sheet and the  connected papers to be returned to the police officer concerned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

to present the same before a Judicial Magistrate of the First  Class for the purpose of committal to the Special Court.  The  judgment of the learned Judge was challenged before this Court  and after an exhaustive consideration of the authorities on the  subject and the statutory provisions, this Court upheld the order  of the High Court setting aside the proceeding initiated by the  Special Court, though it did not approve of the directions given  by the High Court that after committal of the case, the Special  Court shall frame charge against the appellant.  Obviously so,  because it is for the Special Court to decide regarding the action  to be taken next after hearing the parties as provided under  Section 227 of the Code of Criminal Procedure.  Noticing the  provisions of Section 193 of the Code of Criminal Procedure  and Section 14 of the 1989 Act this Court observed that the Act  contemplated only the trial to be conducted by Special Court.   The added reasons for specifying a Court of Session as a  Special Court is to ensure speed for such trial.  Thus the Court  of Session is specified to conduct a trial and no other court can  conduct the trial of offences under the  Act.  The legislative  intent was to ensure that the offences under the Act were tried  by Special Court and Court of Session was specified as a  Special Court under Section 14 of the 1989 Act.  Even after  being so specified as a Special Court the Court of Session  continues to be essentially a Court of Session and its  designation as a Special Court did not denude it of its character  or even powers as a Court of Session.  The trial in such a Court  can be conducted only in the manner provided in Chapter XVIII  of the Code of Criminal Procedure which contains a fasciculus  of provisions for trial before a Court of Session.  This Court  then observed :-

"10.    Section 193 of the Code has to be  understood in the aforesaid backdrop.   The section  imposes an  interdict on all Courts of Session  against taking cognizance of any offence as a court  of original jurisdiction.  It can take cognizance  only if "the case has been committed to it by a  Magistrate", as provided in the Code.  Two  segments have been indicated in Section 193 as  exceptions to the aforesaid interdict.  One is, when  the Code itself has provided differently in express  language regarding taking of cognizance, and the  second is when any other law has provided  differently in express language regarding taking  cognizance of offences under such law.  The word  "expressly" which is employed in Section 193  denoting those exceptions is indicative of the  legislative mandate that a Court of Session can  depart from the interdict contained in the section  only if it is provided differently in clear and  unambiguous terms.  In other words, 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.

11.     Neither in the Code nor in the Act is there  any provision whatsoever not even by implication  that the specified Court of Session (Special Court)  can take cognizance of the offence under the Act  as a 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 straight away be filed before  such Special Court for offences under the Act.  It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

can be discerned from the hierarchical settings of  criminal courts that the Court of Session is given a  superior and special status.  Hence we think that  the legislature would have thoughtfully relieved  the Court of Session from the work of performing  all the preliminary formalities which Magistrates  have to do until the case is committed to the Court  of Session."          

The same view was reiterated in Vidyadharan (supra).  This Court concluded by observing :-

"20.    Hence, we have no doubt that a special court  under the 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 straight away  be laid down before the special court under the  Act.  We are reiterating the view taken by this  Court in Gangula Ashok and another  vs.  State of  A.P. : (2000) 2 SCC 504 in 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."

                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 he 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 next question which survives consideration is  whether the learned Special Judge was justified in taking  cognizance under Section 7(1)(d) of the Protection of Civil  Rights Act.  The High Court held that the utterance imputed to  respondent No.1 did not attract the provisions of Section  7(1)(d) of the Protection of Civil Rights Act.   To attract the  said provision it had to be shown that the words so uttered had  the effect of insulting the appellant on the ground of  "untouchability" which is not the case.  There was no  justification for the submission that the words allegedly uttered  by respondent No.1 encouraged his audience to practise  untouchability or that respondent No.1 practised untouchability.                   The appellant was neither insulted nor attempted to be insulted  on the ground of untouchability.  Therefore, the provisions of  Section 7(1)(d) of the Protection of Civil Rights Act were not  attracted.

       Learned counsel for the appellant did not advance any  argument challenging the above finding of the High Court.  We

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

have also seriously considered the matter and we are satisfied  that the High Court was right in coming to the conclusion that  Section 7(1)(d) of the Protection of Civil Rights Act is not  attracted in the facts and circumstances of this case.  Assuming,  respondent No.1 uttered the words imputed to him, by no  stretch of imagination it can be concluded that by uttering those  words he either insulted or attempted to insult the appellant on  the ground of untouchability.

       In the result this appeal is dismissed.  However, it will be  open to the appellant, if so advised, to file a complaint before a  competent Magistrate who shall consider the complaint on its  merit and then proceed in accordance with law.  The learned  Special Court as well as the High Court have made certain  observations touching on the merit of the controversy.  We   make it clear that in case a complaint is filed by the appellant  before a competent Magistrate, he shall proceed to consider the  matter in accordance with law uninfluenced by any observation  made either by the learned Special Judge or by the High Court.  Nothing said in this judgment also shall be construed as  expression of opinion on the merit of the case.