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CASE NO.: Appeal (crl.)  730 of 1998

PETITIONER: Moly and Anr.

RESPONDENT: State of Kerala

DATE OF JUDGMENT: 23/03/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

[With Criminal Appeal No. 731 of 1998]

ARIJIT PASAYAT, J.

       These appeals involve identical issues and are taken up  for disposal together.          Appellants faced trial for alleged commission of  offences punishable under Sections 3(1)(iii), 3(1)(v) and  3(1)(x) of the Scheduled Castes and Scheduled Tribes  (Prevention of Atrocities) Act, 1989 (in short ’the Act’).   The Trial Court found the appellants guilty and imposed  sentences.  Appeal before the High Court did not bring any  relief to them.   The primary stand taken in this appeal is that the  Trial Court could not have suo moto entertained and  registered the complaint as a sessions case.   Learned counsel for the respondent-State supported the  judgment of the courts below stating that this plea is  taken for the first time in this Court and was not taken  before the Courts below.      Pristine question to be considered is whether the  Special Judge could take cognizance of the offence straight  away without the case being committed to him. If the Special  court is a Court of Session, the interdict contained in  Section 193 of the Code of Criminal Procedure, 1973 (for  short the ’Code’) would stand in the way. It reads thus:         "193. Cognizance of offences by Courts  of Session- Except as otherwise expressly  provided by this Code or by any other law for  the time being in force, no Court of Session  shall take cognizance of any offence as a  court of original jurisdiction unless the  case has been committed to it by a Magistrate  under this Code."  

       So the first aspect to be considered is whether the  Special Court is a Court of Session. Chapter II of the Code  deals with "Constitution of Criminal Courts and Offices".  Section which falls thereunder says that :

       "there shall be, in every State, the  following classes of criminal courts,  namely:

       (i) Courts of Sessions;"

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       The other classes of criminal courts enumerated  thereunder are not relevant in this case and need not be  extracted.  

       Section 14 of the Act Says that:

       "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, specify for each district  a Court of Session to be a Special Court to  try the offences under this Act."

        So it is for trial of the offences under the Act that a  particular Court of Session 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. The word ’inquiry’ is defined  in Section 2(g) of the Code as ’every inquiry, other than a  trial, conducted under this Code by a Magistrate or court’.   So the trial is distinct from inquiry and inquiry must  always be a forerunner to the trial. 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 trial. "Special Court"  is defined in the Act as "a Court of Session specified as a  Special Court in Section 14" (vide Section 2(1)(d).

       Thus the Court of Session is specified to conduct a  trial and no other court can conduct the trial of offences  under the Act. Why did Parliament provide that only a Court  of Session can be specified as a Special Court? 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 fascicules of provisions for  ’trial before a Court of Session".  

       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.

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        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 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.  

       A reading of the concerned provisions makes it clear  that subject to the provisions in other enactments all  offences under other laws shall also be investigated,  inquired into, tried and otherwise dealt with under the  provisions of the Code. This means that if another enactment  contains any provision which is contrary to the provisions  of the Code, such other provision would apply in place of  the particular provision of the Code. If there is no such  contrary provision in other laws, then provisions of the  Code would apply to the matters covered thereby.  This  aspect has been emphasized by a Constitution Bench of this  Court in para 16 of the decision in A.R. Antulay v. Ramdas  Sriniwas Nayak (1984 (2) SCC 500).  It reads thus"

       "Section 4(2) provides for offences  under other law which may be investigated,  inquired into, tried and otherwise dealt with  according to the provisions of the Code of  Criminal Procedure but subject to any  enactment for the time being in force  regulating the manner or place of  investigation, inquiring into, trying or  otherwise dealing with such offences. In the  absence of a specific provision made in the  statute indicating that offences will have to  be investigated, inquired into, tried and  otherwise dealt with according to that  statute, the same will have to be  investigated, inquired into, tried and  otherwise dealt with according to the Code of  Criminal Procedure. In other words, Code of  Criminal Procedure is the parent statute  which provides for investigation, inquiring  into and trial of cases by criminal courts or  various designations."

       Section 5 of the Code cannot be brought in aid for  supporting the view that the Court of Session specified  under the Act obviate the interdict contained in Section 193  of the Code so long as there is no provision in the Act  empowering the Special Court to take cognizance of the  offence as a Court of original jurisdiction. Section 5 of  the Code reads thus:

       "5.- Saving- Nothing contained in this  Code shall, in the absence of a special  provision to the contrary, affect any special  or local law for the time being in force, or

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any special jurisdiction or power conferred,  or any special form of procedure prescribed,  by any other law for the time being in  force."

       This Court in Directorate of Enforcement v. Deepak  Mahajan (1994 (3) SCC 440) on a reading of Section 5 in  juxtaposition with Section 4(2) of the Code, held as  follows:

       "It only relates to the extent of  application of the Code in the matter of  territorial and other jurisdiction but does  not nullify the effect of Section 4(2). In  short, the provisions of this Code would be  applicable to the extent in the absence of  any contrary provision in the special Act or  any special provision excluding the  jurisdiction or applicability of the Code".

       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  straight away be laid down before the Special Court under  the Act.        We are re-iterating the view taken by this Court  in Gangula Ashok and Anr. v. State of A.P. (2000 (2) SCC  504) and in Vidyadharan v. State of Kerala (2004 (1) SCC  215) 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.   

       Though the plea relating to lack of jurisdiction was  not raised before the lower Courts, in view of the  undisputed position on facts and inasmuch as a pure question  of law without any factual controversy is involved, we feel  interference on the facts of the case is called for.                        One more plea which was pressed by learned counsel for  the appellants is that continuance of the proceedings before  the appropriate Court in the manner prescribed in law would  serve no useful purpose in view of the long passage of time.   We do not find any substance in this plea. It is for the  Competent Court to decide regarding the action to be taken  next, after hearing both sides as provided in Section 227 of  the Code. No direction can be given to the said Court at  this premature stage as to what course the Court should  adopt in dealing with the complaint. It is open to the  appellants to raise all their contentions at that stage if  they want to make a plea for discharge. We make it clear  that as and when such plea is made to the Judge of the  Competent Court, he shall pass appropriate orders in  accordance with law.

       With the aforesaid directions and observations the  appeals are finally disposed of.