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PETITIONER: STATE OF HIMACHAL PRADESH

       Vs.

RESPONDENT: GITA RAM

DATE OF JUDGMENT:       08/09/2000

BENCH: K.T. THOMAS, J. & R.P. SETHI, J.

JUDGMENT:

THOMAS,  J.

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   By  the  impugned  judgment a single judge of  the  High Court  ordered  a redo of the whole laborious exercise  once completed  in full measure at great cost of time and energy, solely on a technical ground.

   Respondent  was  charge-sheeted for the  offences  under Section  376  of the Indian Penal Code and Section 3 of  the Schedules  Castes  and  Scheduled   Tribes  (Prevention   of Atrocities) Act 1989 (for short the Act).

   A  Magistrate  committed the case to the Sessions  Court who  was  specified as a Special Court to try  the  offences under  the  Act.  A charge was framed by the  said  sessions court  against  the  respondent only for the  offence  under Section  376  IPC.   After  trial the  said  Sessions  Judge convicted  the respondent for the offence under Section  376 and  sentenced him to undergo imprisonment for seven  years. Respondent filed an appeal before the High Court challenging the  conviction and sentence.  A learned single judge of the High Court set aside the said conviction and sentence on one technical  ground i.e.  the trial judge had no  jurisdiction as  he  was only the Special Court specified under the  Act. The  case  was committed to that court and resultantly  that court  has  no jurisdiction to try an offence under  Section 376 of the IPC separately, according to the High Court.  The operative portion of the High Court judgment reads thus:

   Consequently,  the  appeal is allowed.  Conviction  and sentence  is  set aside.  Since the very commitment  of  the case  to  the Special Court by the learned  Magistrate  vide order dated 24.3.1998 was illegal as he could not have taken cognizance of the offence under the Act of 1989, the learned trial  court  shall  return the record of the  case  to  the learned Magistrate for being returned to the prosecution for being presented to the competent court.

   This  Court  has  considered the  question  whether  the Sessions  Court  specified  as  a Special  Court  under  the provisions  of the Act will cease to be a Sessions Court, or whether  he would continue to be the Sessions judge.   (Vide Gangula  Ashok  vs.  State of Andhra Pradesh [2000  (2)  SCC

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504].   This Court found that even after such  specification the  Sessions Court would continue to be the Sessions  Court and a trial before that court can be held only in accordance with the provisions contained in Chapter XVII of the Code of Criminal  Procedure.  The following is the dictum laid  down by this Court:

   It  is  clear from Sections 14 and 2(1)(d) of  the  Act that  it  is for trial of the offences under the Act that  a particular  Court of Sessions in each district is sought  to be specified as a Special Court.  Though the word trial is not  defined either in the Code or in the Act it is  clearly distinguishable  from  inquiry.   Inquiry must always  be  a forerunner  to  the  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.   Evidently  the legislature  wanted  the  Special  Court to be  a  Court  of Session.   Hence the particular Court of Session, even after being  specified  as a Special Court, would continue  to  be essentially  a  Court of Session and designation of it as  a Special  Court would 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  which  contains a fasciculus  of  provisions  for trial before a Court of Session.

   We  are distressed to note that learned single judge was not  told by the government advocate of the fall out of such a  view, if taken by the single judge, that it means all the witnesses once examined in full should be called back again, and   the  whole   chief-examination,  cross-   examination, reexamination  and questioning of the accused under  Section 313  of  the  Code, hearing arguments, then  examination  of defence  witnesses further again final arguments to be heard and  preparation  of judgment once again.  The  very  object underlined  in  Section  465 of the Code is that if  on  any technical  ground  any party to the criminal proceedings  is aggrieved  he  must  raise  the  objection  thereof  at  the earliest  stage.   If  he did not raise it at  the  earliest stage  he  cannot  be heard on that aspect after  the  whole trial is over.

   The  premise adopted by the learned single judge of  the High  Court is patently erroneous.  The Sessions Court which tried  the  case  for  the offence under  Section  376,  IPC continued  to  have  jurisdiction to try the same,  and  the order  of  committal  was legally valid.  The  appeal  filed before  the  High Court could only be disposed of on  merits and  not  on  the premise erroneously taken by  the  learned Single  Judge.  He has not considered the appeal on  merits. We,  therefore,  set aside the impugned judgment.  We  remit the  case back to the High Court for disposal of the  appeal afresh on merits.

               This appeal is disposed of accordingly.