Judgment:
ORDER
R.K. Batta, J.
1. Both these applications arise out of a criminal complaint filed by the respondent No. 3 against the applicants under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as the said Act.) After examining the complainant and two witnesses, the Magistrate issued process under Section 3(i)(x) of the said Act against the applicants. The applicants have filed separate applications challenging the order of issue of process. One of the grounds on which the issue of process is challenged is that the Magistrate had no jurisdiction to try the matter or issue process since the jurisdiction to try the offence in question exclusively vests with the Special Court under the said Act.
2. Learned Advocate for the applicants, after relying upon two judgments of the Single Judge of this Court, submitted before me that the Magistrate has no jurisdiction to entertain and take cognizance in the matter and it was, therefore, incumbent on the Magistrate to have ordered the return of the complaint in question to the complainant under Section 201(a) of Criminal Procedure Code for presentation of the same to the Special Court. The said judgments are Dhrupadabai wd/o Ananda Labade v. State of Maharashtra and Ors. reported in 2000 (2) Mh.L.J. 748 and Nandkishor s/o Madanlal Choube and Ors. v. State of Maharashtra and Anr. reported in 2000 (2) Mh.LJ. 770. Learned Advocate for the applicants also urged before me that on merits, the applicants have sought quashing and setting aside of the complaint lodged by the respondent No. 3.
3. In this respect, learned Advocate for the respondent No. 3, after placing reliance on the judgment of the Apex Court in Gangula Ashok and Anr. vs. State of Andhra Pradesh reported in : 2000CriLJ819 has urged that in view of the said ruling the law laid down in the judgments of two learned single judges of this Court referred to above, is not good law. He admitted that in view of the judgment of the Apex Court, the order of Magistrate ordering issue of process against the present applicants obviously cannot be sustained since the Magistrate shall have to follow the procedure provided for committal of the case to the Special Court since it is only the Sessions Court under the Act which can try the offence in question.
4. There cannot be two opinions that in view of the judgment of the Apex Court in Gangula Ashok and Anr. vs. State of Andhra Pradesh (cited supra), the Magistrate had absolutely no jurisdiction to order issue of process in respect of an offence under Section 3(i)(x) of the said Act. The Apex Court in the judgment referred to above had examined the question, 'can a Special Court which is envisaged in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 take cognizance of any offence without the case being committed to that Court.' This question was answered by the Apex Court in the following manner :
'A special Court under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) 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 Criminal Procedure Code. In other words, a complaint or a charge-sheet cannot straightway be laid before the Special Court under the Act, After committal of the case it is for the Special 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 Special Court at this premature stage as to what the Court should adopt then. It is open to the appellants to raise all their contentions at that stage if they wish to make a plea for discharge and if any such plea is made the Judge of the Special Court shall pass appropriate orders untrammelled by the observations made in the impugned order.
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 Criminal Procedure Code which contains a fasciculus 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. Neither in the Code nor in the Act there is 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 straightway be filed before such Special Court for offences under the Act. Neither Section 4 nor can Section 5 of the Code be brought in aid for supporting the view that the Court of Session specified under the Act can obviate the interdict contained in Section 193 of the Code as 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.'
5. The learned Advocate for the applicants has himself stated that process under Section 3(i)(x) of the said Act had been issued in these cases by the magistrate. In view of the issue of process the petitioner has approached this Court for quashing of complaint under Section 482, Criminal Procedure Code on various grounds. In view of the judgment of Apex Court referred to above, the action of Magistrate in issuing process obviously is illegal. Of course, issue of process has not been made a matter of challenge in these applications. However, this Court has to take cognizance as to what has transpired. In terms of the judgment of the Apex Court, the Magistrate has to follow the procedure relating to committal of the matter to the Court of Session.
6. In view of the above, the observations in the judgments of the learned Single Judge referred to in para 2 above that in such matters, the magistrate shall return the complaint to the complainant under Section 201(a) for presentation to the Special Court are no longer good law. Learned Advocate for the applicants, at this stage, seeks to withdraw the applications in relation to the quashing of the complaint with liberty to approach this Court, if necessary at appropriate stage. In view of the same, the applications are allowed to be withdrawn with liberty as sought. The order in question be communicated to the Magistrate since the order of issue of process has been quashed and the Magistrate shall proceed with the matter in accordance with law in the light of the judgment of the Apex Court in Gangula Ashok and Anr. v. State of Andhra Pradesh (cited supra).
7. The applications stand disposed of accordingly.