1. The appellant herein filed private complaint on the file of I Additional Judicial First Class Magistrate at Warangal against the accused 1 to 3, alleging the offences punishable under Sections 3(1)(ii), 3(1)(v), 3(1)xv), 3(1)(viii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act ) read with Sections 307, 506, 447, 324 and 350 read with 34 IPC. On reference under Section 156(3) of Cr.P.C., FIR No.260/2010 was registered on the file of SHO P.S. Mills Colony, Warangal. Initially, the Sub Divisional Police Officer, N.Ajay Kumar, took up investigation and subsequently the case was investigated by Dr.P.Lavanya Naik Jadav, SDPO and after completion of investigation, filed charge sheet dated 6.6.2012 stating that no offence is established against the accused A-1 to A-3 under Sections 307, 447, 452, 506, 349, 350 read with 34 IPC and Section 3(v)(vii) (xv); except under Section 3(1) (x) of the Act.
2. Accordingly, the I Additional Judicial First Class Magistrate, Warangal committed the case to the court of sessions under Section 209 of Cr.P.C. and the case is numbered as S.S.C.No.54 of 2012 on the file of Special Sessions Judge for SC/ST (POA) Act cases cum VII Additional District and Sessions Judge, Warangal. The stage of the case is that the schedule for the trail has been fixed.
3. In the meanwhile, the Scheduled castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (No.1 of 2016) has been notified in the gazettee of India extraordinary on 1.1.2016, with effect from 26.2.2016.
4. Section 14(1) of Amendment Act, 2015 empowers the Special Court to directly take cognizance of offences under the Act. When the case matured for trial, the de facto complainant filed S.R. Nos.341 and 342 of 2016 in SC.No.54 of 2012 under Section 4(1) and (2) of the Amendment Act of 2015 seeking administrative enquiry against the 2nd investigating officer i.e., Dr.P.Lavanya Naik Jadav, SDPO, on the grounds that she has omitted the offences under the IPC. As alleged by complainant, without conducting proper enquiry; failed to submit her report in C.No.35/SDPO-WRL/2012 dated 6.8.2012 and also failed to collect the injury certificates from the MGM Hospital, Warangal.
5. The case of the de facto complainant is that under Section 14(1) of Amendment Act, 2015 the Special Court assumes the jurisdiction of the original court. Accordingly, the said court can take cognizance of the offence as alleged in the petition, and order for administrative enquiry as envisaged under Section 4(1) and (2) of the Amendment Act of 2015 against the second investigating officer. The trial court by order dated 25.4.2016, held that as the Amendment Act of 2015 came into effect from 26.1.2016 and no retrospective effect is given, moreover, the charge sheet was filed on 6.6.2012, therefore, the court cannot direct further investigation in the FIR or can take cognizance directly and order for administrative enquiry against the 2nd investigating officer. Accordingly rejected the petition.
6. Subsequently, the de facto complainant filed the present protest petition in S.R.No.586/2016 in S.S.C.54/2012 under Section 14 of the Amendment Act of 2015 read with Section 190(i)(a) of the Cr.P.C. praying to take all appropriate steps to reframe charges against the accused. By the impugned order dated 18.5.2016, the trial court rejected the petition and the relevant portion of the order is as under:
7. (iii) . . . Therefore, as per the settled law, under the provisions of SC/ST (POA) Act, 1989, the Special Court is essentially a Court of Sessions and it can take cognizance of the offence only when the case is committed by the Magistrate and this court cannot straight away take or entertain the complaint or charge sheet. 8. Amendment Act of 2015 came into effect since 26.1.2016. Unless specifically given there would be no retrospective effect to any of the provisions in a statute. It is not specified in the Amendment Act, 2015, that the provisions are given retrospective effect. Section 14(1) of Amendment Act, 2015 empowers the Special Court to directly take cognizance of offences under the Act.
9. Since this court is essentially a Court of Sessions and charge sheet is filed on 6.6.2012, this court cannot assume powers as per the provisions of Amendment Act, 2015, which came into force on 26.1.2016
10. The Trial schedule is fixed for the above case and at this stage the de facto complainant filed the present petition. This Court cannot entertain the protest petition relating to the offence of the year 2010 on which charge sheet laid on 6.6.2012. On the line of the same argument, previously, the petitioner filed S.R.Nos.341 and 342 of 2016 to give directions for further investigation and to make administrative enquiry and the same was rejected vide orders dated 25.4.2016. Again the petitioner intends this court to exercise more or less the same powers which is nothing but abuse of process of law.
7. Aggrieved by the above order, the appellant has filed the present appeal.
8. The petitioner who appeared in person, while reiterating the allegations against the accused and the 2nd investigating officer who filed charge sheet dated 6.6.2012 stated that the 2nd investigating officer by name Dr.P.Lavanya Naik Jadav, the then Sub Divisional Police Officer, on being directed by the Superintend of Police, submitted report vide C.No.35/SDPO-SRL/2012 dated 6.8.2012, whereby the allegations levelled against the accused were found to be true. But after filing of the charge sheet on 6.6.2012, the subsequent report dated 6.8.2012 was not brought to the notice of the court and the charge sheet was filed only for the offences under Section 3(1)(x) of the Act. Therefore, for dereliction of duty on the part of the 2nd respondent, in not bringing the subsequent report dated 6.8.2012 and for not collecting the medical certificates, which are supporting the case against the accused, and for not making further investigation, the appellant filed the petition for reframing of the charges.
9. He submitted that the under the petition, he sought the court below, which is Special Court, to take cognizance of the offence under Section 14 (1) of the Act. He further submits that the Amendment Act of 2015 empowers the Special Court to take cognizance of the offences under the Act. However, the court below rejected the petition holding that Amendment Act cannot be given retrospective effect.
10. The appellant relied on the judgment of the High Court of Rajasthan in BHURA LAL v. STATE (1999 CRI. L.J. 3552)wherein observed that it is not necessary that cases have to be committed by a Magisterial court to the special court and Section 193 of the Cr.P.C., applies only to a Court of Session and not to the Special Court under Section 14 of the Act and hence the special court can take cognizance of the offence complained of against the 2nd investigating officer and the accused and direct for further investigation and for reframing of the charges. Relying on the judgment of the Apex Court in DHARAM PAL vs. STATE OF HARYANA (2014)3 SCC 306)opined that once the case is committed by the committal court, the sessions court assumes the original jurisdiction and the said court acting under the original jurisdiction, could issue summons under Section 193 of the Code on the basis of records transmitted to it. With these averments, he sought to set aside the impugned order and to direct the trial court to reframe the charges against the accused
11. On the other hand, the learned Public Prosecutor appearing for the State submits that the Amendment Act of 2015 has been notified in the Gazette of India Extraordinary on 1.1.2016, which came in force on 26.01.2016. Therefore, he submits that as the amendment is made operative from 26.1.2016 and the offence in the present case has taken much prior to the amendment and the case is at the stage of trial, the amendment, cannot be made operative retrospectively. However, in view of the judgment of the Apex Court (2 supra), he sought to pass appropriate orders.
12. The facts noted above, needs no reiteration. Suffice it note that in the present case the crime in FIR No.260/2010 was registered under 3(1)(ii), 3(1)(v), 3(1)xv), 3(1)(viii) of the Act read with Sections 307, 506, 447, 324 and 350 read with 34 IPC for the alleged offences committed on 27.10.2010 and the charge sheet was filed on 6.6.2012. As per the impugned order, schedule for the trial is fixed. At this stage, under the present petition the appellant is seeking for reframing of the charges as per the complaint in exercise of jurisdiction vested in the Special Court under Sections 14 of the Amendment Act of 2015.
13. As already noted above, the Amendment Act of 2015 has been notified in the Gazette of India Extraordinary on 1.1.2016. Under sub-section (2) of Section 1, the Central Government has appointed 26.1.2016 as the date of enforcement of the Amendment Act, notified in the Gazette of India, Extraordinary, on 18.1.2016. The proviso to Section 14(1) empowers the courts to directly take cognizance of offence under this Act. The petitioner in the present petition is seeking the Special Court to exercise the said jurisdiction. As per the notification, the amendment will be effective from 26.1.2016. In the absence of any express provision making the operation of the Act retrospective, it cannot be given retrospective effect. The High Court of Madhyra Pradesh at Gwalior in MOHAR SINGH v. STATE OF MP. (2016 SCC OnLine MP 4639) while considering Section 14-A (2) of the Amendment Act, 2015, which provides for appeal against the order of Special Court dealing with the bail applications, held the amendment came into force on 26.1.2016, and, therefore, the offences committed on or after 26.1.2016 shall be governed by the provision under Section 14-A of the Special Court. It was further held that, the said provision shall not have any retrospective effect. In view of these circumstances, the finding of the trial court that the amendment cannot be given retrospective effect, cannot be found fault with.
14. However, a Constitutional Bench of the Apex Court in the decision reported in DHARAM PAL (supra) considering Sections 193 of Cr.P.C. held that once case is committed to Sessions court by Magistrate under Section 209, it assumes original jurisdiction and acting as court of original jurisdiction, could issue summons under Section 193 of Cr.P.C., on the basis of record transmitted to it as result of committal order passed by Magistrate. The Apex Court further held that the Sessions Court has jurisdiction on committal of case to it, to take cognizance of offences of persons not named as offenders, but whose complicity in case would be evident from the materials available on record. The relevant issue and the conclusions of the Apex Court, for better appreciation, are as under:
4. The questions which require the consideration of the Constitution Bench are as follows:
(iv) Can the Sessions Judge issue summons under Section 193 Code of Criminal Procedure as a Court of original jurisdiction?
26. Questions 4, 5 and 6 are more or less interlinked. The answer to question 4 must be in the affirmative, namely, that the Sessions Judge was entitled to issue summons under Section 193 Code of Criminal Procedure upon the case being committed to him by the learned Magistrate. Section 193 of the Code speaks of cognizance of offences by Court of Sessions and provisions as follows:
193. Cognizance of offences by Court 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.
The key words in the Section are that no Court or 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. The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Sessions take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr. Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offence under the said Section.
15. In addition to above, in the case of BHURA LAL v. STATE (1999 CRI..L.J. 3552)a Full Bench of the Rajasthan High Court held that it is not necessary that cases have to be committed by a Magistrate Court to it. Section 193 of the Code, applies only to a court of Sessions and not to the Special Court specified under Section 14 of the SC/ST Act. Therefore, the Special Court can exercise original jurisdiction. The relevant excerpts are as under:
28. In the light of the aforesaid judicial pronouncements we may again examine language of Section 14 of the SC/ST Act. No doubt the Special Court envisaged by Section 14 of the SC/ST Act has to be a Court of Session but it is all the same a Special Court and not a Court of Session . The language employed only means that no other Court than a Court of Session could be specified as a special Court for trying the offences under the Act. But does not mean that such a Special Court would be nothing but a court of Session only. On specification of a Court of Session to be a special Court , it becomes a distinct and separate Special Court not bound by the procedures prescribed for Court of Session. When the Court has been established to try offences under the Act most of which would not otherwise be triable by a Court of Session, it is clear that the legislative intent was not to create a Special Court having jurisdiction to try only such offences under the SC/ST Act which would be otherwise triable by a Court of Session. The intention of the Legislature is clearly to ensure that a Court of the level of a Court of Session only is empowered to deal with the offences under the SC/ST Act triable otherwise by a Court of Session or not cutting short the delay involved in the judicial trials in the normal course and to provide speedy, effective and qualitative justice to the victims of the social injustices practices against the down trodden classes of the society. The intention was not to provide for another Court of Session which would deal with the cases involving offences under SC/ST Act in the same manner in which the other cases are being dealt with. If it is interpreted that the Special Court created by the ST/SC Act would be bound to follow the same procedure which is followed by a Court of Session, the very purpose of providing a Special Court will be defeated. We therefore hold that the Special Court envisaged by Section 14 is not another court of Session but is distinct and separate from it. It has to deal with the cases before it not as a court of Session but as a Special Court and therefore it is not necessary that it could deal with only those cases which would have been triable by a Court of Session if the Special Court had not been created. It is also not necessary for the same reason that cases have to be committed by a Magisterial Court to it. Section 193 of the Code of Criminal Procedure applies only to a Court of Session and not to the Special Court specified under Section 14 of the SC/ST Act.
29. The next question in what would be the procedure to be followed by the Special Court created under Section 14 of the SC/ST Act? As we have already seen under Section 4(2) of the Code of Criminal Procedure all offences under any other law than the IPC have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code subject to any enactment regulating the manner or place of the investigating, inquiring into, trying or otherwise dealing with such offences. There is therefore no doubt that in the matters for which procedure has not been prescribed by SC/ST Act the procedure prescribed by the Code of Criminal Procedure would apply and the Special Court under Section 14 of the SC/ST Act would try the offences by following the procedure prescribed by the Code subject to express provisions of the SC/ST Act.
34. Harmoniously construing the various provisions of the Code as well as that of SC/ST Act and keeping in view the objections and purposes of SC/ ST Act we are of the opinion that the cases involving offences under the SC/ST Act are exclusively triable by the Special Court. But we are also of the opinion that keeping in view the objects and purposes of the SC/ST Act to provide speedy justice to the victims of social prejudices at a cheaper cost and at a nearer and convenient place at the pre-trial stages i.e., at the inquiry stages such cases can be dealt with by both the Special Court as well as the Courts of Magistrate empowered under Section 190 of the Code to deal with them. In the result, we answer the reference as under:-
(1) the cases involving offences under SC/ST Act are exclusively triable by a Special Court created under Section 14 of the SC/ST Act.
(2) Section 193 of the Code has no application to trial of offences under the SC/ST Act by the Special Court and the Special Court under SC/ST Act has jurisdiction to deal with the cases involving offences under SC/ST Act right from the initial stages in the same manner as a Magistrate can deal with them under the code.
(3)The Magistrates having jurisdiction over the area in which offences under SC/ST are alleged to be committed, empowered to deal with the cases under Section 190 of the Code will also have the jurisdiction to deal with cases during the inquiry i.e., pre-trial stages including exercise of power under Section 156 (3) of the code and thereafter he shall transmit all such cases to the Special Court situated within that jurisdiction.
16. In view of the law laid down by the Apex Court in the Constitutional Bench judgment and the Full Court judgment of the Rajasthan High Court, cited supra, the impugned order is set aside. Consequently, the trial court is directed to consider the present petition filed by the appellant/de facto complainant afresh and after giving opportunity to both the parties, pass orders in accordance with law.
17. In view of the above, the criminal appeal is accordingly allowed.
18. Miscellaneous petitions pending if any, shall stand closed.