Full Judgment
Sadanand Mukherjee, J.
1. This is an application for quashing the order dated 27.5.2004 and entire consequential proceedings of Sessions Trial No. 85A of 1984 pending in the Court of Sri E.N. Prasal, Fast Track Court, Munger.
2. Prosecution case is that Opposite Party No. 2, namely, Suresh Mandal, had given a written statement before the Sub-Inspector of Bariyapur police station on 18.8.1981 alleging therein that while his uncle, Lakhan Mandal and co-villager Bala Mandal were working at their field on 17.8.1981, the accused persons came there and abducted the aforesaid persons for murder. Thereafter a case was instituted under Sections 364/34 of the I.P.C. Charge-sheet was submitted against the petitioner along with other seven accused persons. The police papers, in compliance with the mandate of Section 207 of the Code of Criminal Procedure, allegedly were never supplied to the petitioner.
3. The case of the petitioner is that the case had been committed to the Court of Sessions vide Sessions Trial No. 85 of 1984 in absence of the petitioner. After trial, the other accused persons, two co-accused, namely, Adhya Bind @ Singh and Bishundeo Bind were convicted for the offence under Sections 364/34 I.P.C. on 31.3.1999. They preferred an appeal being Cr. Appeal No. 67 of 1999 and they are on bail.
4. It is submitted on behalf of the petitioner that the petitioner is being tried by the learned Fast Track Court without following the mandate of Sections 207 and 209 of the Code. The case of the petitioner was separated on 22.2.1984. This matter was raised in the learned court below, i.e., the Fast Track Court, Munger, namely, Shri B.N. Prasad. In the order dated 27.5.2004 the learned Court below found that the petition filed by the petitioner was not maintainable as the charge has already been framed and steps have been taken against the witnesses to produce the prosecution witnesses before the Court. The witnesses were also being examined. It appears that no separate file was opened for the ten accused persons who were absent and the case was committed to the Court of Sessions by issuance of process under Sections 82 and 83 Cr.P.C. Thereafter in the Court of Additional Sessions Judge, 5th Munger this petitioner, namely, Parmatma Bind, appeared. The trial of other accused persons were separated and charge was framed against this petitioner, namely, Parmatma Bind under Section 364/34 I.P.C. for which he pleaded not guilty and claimed to be tried. Thereafter, the witnesses were being examined. This petitioner was on bail. The learned court below did not find any irregularity and hence rejected the prayer of the petitioner.
5. In support of his contention on behalf of the petitioner A.I.R. 2003 SCW page 6511 as well as A.I.R. 2004 SCW 1708 have been cited. Both the aforesaid cases relate to Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act in which it was held that the special Court being a Court of Sessions was constituted under the Act for trial of the offences under the aforesaid Act and trial is distinguishable from enquiry. It was held therein that in view of Section 193 of the Code of Criminal procedure unless it is positively and specifically provided differently, no court of Sessions can take cognizance of any offence directly without being committed to it by a Magistrate. It has been laid down that neither in the Code nor in the Act is there any provision whatsoever not even by indicating that specified court of Sessions, i.e., 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 Magistrate.
6. In the instant case, the case was committed to the Court of Sessions. Later-on, pursuant to the appearance of this petitioner, charge was framed and, as the record shows, the case is at the trial stage and some witnesses were examined. It was held by the Hon'ble Supreme Court in : 1979 CriLJ333 that under Section 193 read with Section 209 Cr.P.C. when a case is committed to the Court of Sessions in respect of an offence, the court of Sessions takes cognizance of the offence and not of the accused. It was held therein that the bar of Section 193 (sic) would be out of the way after the commital of the case to the Court of Sessions. However, it has been submitted that in this case after the case was committed to the Court of Sessions, the petitioner appeared upon issuance of process and then charge was framed.
7. Since the case is proceeding after commitment of the case although the petitioner had not appeared, irregularity, aforesaid, if any, which is not vital in nature does not tend to vitiate the trial. Hence, this application stands dismissed.