ORDER
Navadgi, J
1. These Revision Petitions are disposed of by this Common Order since the Question of Law involved in alt of them is the same. The original Order shall be kept in the record and proceedings in Criminal Revision Petition No. 114/93, whereas a copy thereof shall be retained in each of the record and proceedings in Criminal Revision Petitions Nos.586, 587 and 588, of 1994.
Facts in Cr.R.P.No. 114/1993
2. This Criminal Revision Petition is directed against the order dated 23-12-1992 made by the learned Presiding Officer, Special Court, Raichur ('the learned trial Judge' for short), in Special Atrocities C.C.No. 11/1991. Under the order impugned, the learned trial Judge has held that the only offence he could try under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Act' for short), would be the one punishable under Sections 3(1)(xii) and 3(2)(v) of the Act. In that view of the matter, he has altered the charges framed against the respondent both under Sections 312, 376 read with Section 511 of the Indian Penal Code and under Sections 3(1)(xii) and 3(2)(v) of the Act by omitting the Charges framed for the offences punishable under Sections, 312 and 376 read with Section 511 of the Indian Penal Code and retaining the Charges framed under the Act as indicated earlier.
3. The State of Karnataka, feeling aggrieved by the order, has presented this Criminal Revision Petition.
4. According to the prosecution, on 8.10.1990 at about 8-00 A.M., in the limits of Village: Ooti, Nagappa, the respondent (hereinafter referred to as 'the accused'), attempted to commit rape on a woman, by name, Yellamma, belonging to Scheduled Caste. According further to the prosecution, on that day at 8-00 A.M., the accused held Yellamma on the cart track line in the field of Huttigi Marad and with a view to commit rape, sat on her stomach and attempted to commit rape. Yellamma was pregnant at that time. She made attempts to escape from the clutches of the accused. The accused, with a view to obstruct her attempts successfully and attempt to commit rape, kicked on her stomach. Miscarriage was caused as a result of the assault.
5. On the basis of the complaint lodged by Yellamma in the Police Station at Jalhalli in Raichur District, a case came to be registered against the accused in Crime No. 48/1990 for the offences punishable under Section 354 of the Indian Penal Code and Section 3(1)(xii) of the Act. On completion of investigation, the Police forwarded the accused to the Special Court constituted under Section 14 of the Act for inquiry and trial of the offences punishable under Section 376 read with Sections 511 and 313 of the Indian Penal Code and also under Section 3(1)(xii) and 3(2)(v) of the Act.
6. The learned trial Judge, after hearing both the sides, framed Charges against the accused for the offences stated earlier.
7. The case had stood posted for trial. The accused made an application under Section 216 of the Code of Criminal Procedure, 1973 ('the Code' for short), on the ground that the Special Court had only the power and jurisdiction to try the offences punishable under the Act that without a valid order of commitment, the Special Court could not have taken cognizance of the offences punishable under Sections 312 and 376 of the Indian Penal Code and that therefore, the Charges framed for the said offences had to be deleted.
8. The State of Karnataka opposed the motion. The learned trial Judge, after hearing both the sides, held that the Charges framed against the accused for the offences punishable under Sections 312 and 376 read with Section 511 of the Indian Penal Code, were liable to be deleted.
9. The learned trial Judge, dealing with the definition clause, the various offences mentioned in Section 3(1) of the Act and the provisions contained in Sections 18 and 20 of the Act, concluded that the only offences which the Special Court could try, were the offences under the Act.
10. He reasoned that having regard to the provisions contained in Section 193 of the Code, the Special Court could not take cognizance of the offences punishable under Sections 312 and 376 read with Section 511 of the Indian Penal Code in the absence of a valid order of commitment and that therefore the cognizance of the said offences taken by him was invalid and consequently the Charges framed against the accused for the said offences were liable to be deleted.
Facts in Cr.R.P.No. 586/1994
11. Petitioners 1 to 8 are Accused Nos.1 to 8 respectively in Special Atrocities C.C.No.41/92, on the file of the learned II Additional Sessions Judge, Raichur ('the learned trial Judge'), They would be referred to as such.
12. Feeling aggrieved by the order dated 15.7.1994, made by the learned trial Judge over-ruling the objections raised by them that the Special Court constituted under the Act cannot try the offences under the Indian Penal Code, they have presented this Criminal Revision Petition.
13. The facts of the matter that have led to the forwarded of A-1 to A-8 to the Special Court for inquiry and trial of the offences, are neither stated by A-1 to A-8 in their Criminal Revision Petition nor do they appear in the order made by the learned trial Judge impugned in this Revision Petition. I am constrained to observe that it would have been better if A-1 to A-8 had stated the relevant facts in the Memorandum of Criminal Revision Petition. The learned trial Judge before considering the questions, should have stated though in brief, the relevant facts.
14. Both the learned Counsel for the accused and the learned High Court Government Pleader were not in a position to appraise the Court with the facts of the case when specifically questioned, though, at the request of either of them, the matter had been adjourned many a time.
15. But, from the submissions made both by the learned Counsel for A-1 to A-8 and the learned High Court Government Pleader for the respondent-State, it appears that A-1 to A-8 have been forwarded to the Special Court for inquiry and trial of the offence under the Act and the offence/s under the Indian Penal Code.
16. Accused Nos. 1 to 8 raised an objection before the learned trial Judge that the Special Court had no jurisdiction to try the offence punishable under the Indian Penal Code along with the offence under the Act, in the absence of a valid order of committal made under Section 193 of the Code.. The learned trial Judge examined the contention in the light of the provisions contained in the Act and the Judicial consensus crystallised as a result of various Judicial Decisions and by the order dated 15.7.1994, rejected the objection. It is this order that is challenged in this Criminal Revision Petition.
Facts in Cr.R.P. No. 587/1994
17. Petitioners 1 to 9 are A-1 to A-9 respectively in Special Atrocities C.C.No. 46/92, on the file of the learned II Additional Sessions Judge, Raichur ('the learned trial Judge'). They would be referred to as such.
18. Feeling aggrieved by the order dated 15.7.1994 made by the learned trial Judge negativing their objection that the Special Court cannot try the offences punishable under the Indian Penal Code in the absence of a valid order of commitment, they have presented this Criminal Revision Petition,
19. The facts of the matter that have led to the forwarded of A-1 to A-9 to the Special Court for inquiry and trial of the offences, are not stated by A-1 to A-9 in their Criminal Revision Petition nor do they appear in the order made by the learned trial Judge impugned in this Revision Petition. I am constrained to observe that it would have been better if A-1 to A-9 had stated the relevant facts in the Memorandum of Criminal Revision Petition. The learned trial Judge before considering the question, should have stated though in brief, the relevant facts.
Facts in Cr.R.P.No. 588/1994
20. Petitioners 1 and 2 are A-1 and A-2 respectively in Special Atrocities C.C.No. 15/93, on the file of the learned II Additional Sessions Judge, Raichur ('the learned trial Judge'). They would be referred to as such.
21. Feeling aggrieved by the order dated 15.7.1994 made by the learned trial Judge rejecting the contention raised by A-1 and A- 2 that the Special Court cannot try the offences under the Indian Penal Code in the absence of a valid order of commitment under Section 193 of the Code, they have presented this Criminal Revision Petition.
22. The facts of the matter that have led to the forwarded of A-1 and A-2 to the Special Court for inquiry and trial of the offences, are not stated by A-1 and A-2 in their Criminal Revision Petition. Nor do they appear in the order made by the learned trial Judge impugned in this Revision Petition. I am constrained to observe that it would have been better if A-1 and A-2 had stated the relevant facts in the Memorandum of Criminal Revision Petition. The learned trial Judge before considering the question, should have stated though in brief, the relevant facts.
23. The Act came to be enacted to prevent commission of offences of atrocities against the members of Scheduled Castes and Scheduled Tribes, to provide for Special Courts for the speedy trial of such offences and for the reliefs and rehabilitation of the victims of such offences and the matters connected therewith and incidental thereto. In Section 2, the word 'atrocity' and the expression 'Special Court' have been defined as under:
'2- Definitions.--(1) In this act, unless the context otherwise requires,-
(a) 'atrocity' means offence punishable under Section 3;
(b) xxx xxx xxx(c) xxx xxx xxx
(d) 'Special Court' means a Court of Sessions specified as a Special Court in Section 14.'
24. Under Section 2(1)(f), the words and expressions used, but not defined in the Act and defined in the Code or the Indian Penal Code have been given the meanings assigned to them respectively in the Code or in the Indian Penal Code. Section 3 provides for punishments for the offences of atrocities. Section 3 reads as under:
'3. Punishments for offences of atrocities.- (1) Whoever not being a member of a Scheduled Caste or a Scheduled Tribe,-
(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance;
(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood;
(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;
(iv) wrongfully occupies or cultivates any land owned by or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred;
(v) wrongfully disposes a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water;
(vi) compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do 'begar' or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government;
(vii) forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;
(viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;
(ix) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe;
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
(xi) assaults or uses force to any woman belonging to Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;
(xii) being in a position to dominate the will of a woman belonging to a Schedule Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;
(xiii) corrupts or fouls the water or any spring, reservoir or any other source ordinarily used? by members of the Scheduled Castes or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used;
(xiv) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to;
(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence,
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
(2) Whoever not, being a member of a Scheduled Caste or a Scheduled Tribe,-
(i) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence shall be punished with death;
(ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;
(iii) commits mischief by fine or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
(iv) commits mischief by fine or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Schedule Tribe, shall be punishable with imprisonment for life and with fine;
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
(vi) knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence; or
(vii) being a public servant, commits any offence under this Section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.'
25. Under Section 6, subject to the other provisions of the Act, the provisions of Section 34, Chapter III, Chapter IV, Chapter V, Chapter VA, Section 149 and Chapter XXIII of the Indian Penal Code, as they apply for the purposes of the Indian Penal Code, have been made applicable in so far as they may be applicable for the purposes of the Act.
26. Section 14 of the Act gives power to the State Government for the purpose of providing speedy trial, to specify for each District a Court of Session to be a Special Court to try the offences under the Act with the concurrence of the Chief Justice of the High Court.
27. Section 18 excludes the provisions contained in Section 438 of the Code in relation to any cause involving the arrest of any person on an accusation of having committed an offence under the Act.
28. Section 19 makes the provisions of Section 360 of the Code and the provisions of the Probation of Offenders Act, 1958, not applicable to any person above the age of 18 years found guilty of having committed an offence under the Act.
29. Section 20, which provides for the overriding effect of the provisions of the Act on other laws, reads :
'20. Act to override other laws.-- Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.'
30. In exercise of the powers conferred by Section 14 of the Act, the Government of Karnataka, with the concurrence of the Hon'ble Chief Justice of this Court, have specified the Courts of Session specified in Column No. 2 of the Table in the Notification No. SWL 7 SSC 90 dated 29th January 1990, to be Special Courts for the Districts specified in the corresponding entries in Column No. 3 thereof, to try the offences under the Act.
'In exercise of the powers conferred by Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Central Act 33 of 1989) the Government of Karnataka, with the concurrence of the Chief Justice of High Court of Karnataka, hereby specify the Courts of Session specified in Column (2) of the Table below, to be special Courts for the District specified in the corresponding entries in Column (3) thereof, to try the offences under the said Act.
TABLE Sl. No. Court of Session District.1. City Civil and Sessions Court, Bangalore Bangalore District2. District & Sessions Court, Bangalore Bangalore RuralDistrict3. District & Sessions Court, Belgaum Belgaum District4. District & Sessions Court, Bellary Bellary District5. District & Sessions Court, Bijapur Bijapur District6. District & Sessions Court, Bidar Bidar District7. District & Sessions Court, Chickmagalur Chickmagalur Districl8. District & Sessions Court, Chitradurga Chitradurga District9. District & Sessions Court, Dharwad Dharwad District10. District & Sessions Court, Gulbarga Gulbarga District11. District & Sessions Court, Hassan Hassan District12. District & Sessions Court, Dakshina KannadaDakshina Kannada, Mangalore , District13. District & Sessions Court, Uttar KannadaUttar Kannada, Karwar District14. District & Sessions Court, Kodagu, Mercara Kodagu District15. District & Sessions Court, Kolar Kolar District16. District & Sessions Court, Mandya Mandya District17. District & Sessions Court, Mysore Mysore District18. District & Sessions Court, Raichur Raichur District19. District & Sessions Court, Shimoga Shimoga District20. District & Sessions Court, Tumkur Tumkur District
32. The State Government, under Order No. LAW 106 LCE 90 Bangalore, dated 19th January 1993, accorded sanction for the creation of the posts of Additional District and Sessions Judge to each of the Courts of District and Sessions Judge at Raichur and at Kolar along with the staff detailed in the order, with effect from 23.1.1993 and 6th February 1993 respectively to try the offences under the Act and other cases entrusted.
33. From the reading of the Notification and the order made by the Government, just adverted to, it would be clear that the State Government has established a Court of Session for the Raichur Sessions Division (Raichur District). Under Section 9(1), the High Court has appointed a Judge to preside over the Court of Sessions.
34. Under the provisions of the Code, wherever the expression 'Court of Session' is used, it means a Court established under Section 9 of the Code. Under Section 6 of the Code, Courts of Session belong to a class of Courts different from the High Court. The point we cannot afford to overlook, is that there is only one Court of Session for every Sessions Division though it may be presided over by several Judges. !t would be inaccurate to use such expression as Court of Sessions Judge or the Court of Additional or Assistant Sessions Judge.
35. Under Section 9 of the Code, the High Court is bound to appoint a Judge for every Court of Session. It may also appoint Additional or Assistant Sessions Judge to exercise jurisdiction in such a Court. The appointment of an Additional Sessions Judge does not constitute an Additional Sessions Court. There can be only one Judge of such Sessions Court and if an Additional Sessions Judge is appointed, he can try only such case as the Sessions Judge makes over to him or the High Court, by special order or direction direct him to try.
36. Bearing in mind these principles, if we examine the Notification and the order referred to earlier, it would be clear that though the Government, under the Notification dated 29.1.1990, specified the Court of Session, Raichur, to be the Special Court under Section 14 of the Act for Raichur District to try the offences under the Act, a Sessions Judge, who has been appointed as Additional Sessions Judge, after the creation of such post by virtue of the sanction accorded by the Government under Notification No. LAW 16 LCE 90, Bangalore Dated 19.1.1993, to exercise the jurisdiction in the Court of Session at Raichur, can try the offences under the Act. As a matter of fact, order dated 19.1.1993 makes it abundantly clear that the post of Additional Sessions Judge to the Court of Session, Raichur, was created to try the cases under the Act and other cases entrusted to him. Thus, the II Additional Sessions Judge can try the offences under the Act and the other cases entrusted or made over to him by the Sessions Judge or under the directions of the High Court by a special order.
37. Having cleared the ground so far, the first question that calls for consideration and answer would be what is the correct procedure to be followed by Special Court when a final report is laid before it for the trial of the offences punishable under the Act.
38. Section 4 of the Code provides for trial of the offences under the Indian Penal Code and under the other laws. This Section has two sub-sections.
39. Sub-section (1) states that all offences under the Indian Penal Code shall be investigated, inquired into, tried or otherwise dealt with according to the provisions contained in the Code.
40. Section 4(2) provides that all offences under any other law shall be investigated, inquired into, tried or otherwise dealt with according to the provisions of the Code, but subject to any enactment for the time being' in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
41. A careful analysis of Section 4 of the Code would show that it provides for the procedure to be followed in every investigation, inquiry or trial in regard to the offences under the Indian Penal Code as well as under other laws. In the former case, the procedure, as laid down in the Code, has to be followed. But, in the latter, that is subject to any enactment in force which regulates the procedure in such cases. To put it in other words, more precisely and accurately, the procedure in the two cases is the same except to the extent that the special enactment regulates the manner or place of investigating, inquiring, trying or otherwise dealing with such offences. Section 26 of the Code provides the Courts by which offences are triable. If Section 4 and Section 26 of the Code are read together, there cannot be any doubt that both the Sections govern every criminal proceeding both as regards the Tribunal by which a crime is to be tried, and as to the procedure to be followed.
42. It is clear from Section 4 that the provisions of the Code which relate to the place of trial, assume the existence of substantive liability under the Indian Penal Code or any other law. The jurisdiction of a Court of general jurisdiction can be excluded by the setting up of a Court of the limited jurisdiction in respect of the limited field only if the vesting and the exercise of such limited jurisdiction is clear and operative. The jurisdiction of ordinary Court can be barred in two cases. First, the exclusion of the jurisdiction by an enactment clear and operative. Two consequences flow from this. The jurisdiction of ordinary Courts is not ousted where the Statutory Rules made for the enactment setting up the Special Court is ultra vires or where the special enactment does not provide the machinery for the exercise of the special jurisdiction. Secondly, the jurisdiction of the Special Court must be limited to a specified field.
43. To sum up, Section 4 is comprehensive. Unless any other law prescribes a special procedure for the trial of an offence, the procedure laid down in the Code has to be followed. Section 1(2) of the Code is net enacted in derogation of Section 4(2). It deals with the extent of the application of the Code in the matter of territorial or other jurisdiction. It does not nullify the effect of Section 4(2).
44. The effect of reading Section 4(1) and 4(2) conjointly would make it crystal clear that where specific provisions are made in the statute defining the offences, those offences so defined will have to be investigated, inquired into, tried or otherwise dealt with according to the specific provisions. In the absence of such specific provisions, the same will have to be investigated, inquired into, tried or otherwise dealt with according to the provisions contained in the Code.
45. The provisions in the Special Act would apply and prevail over the provisions in the Code. But, when the special law does not prescribe any particular procedure, the provisions contained in the Code will govern the investigation, inquiry and trial of cases by Criminal Courts. To conclude, it has to be held that the Code stands in the position of a parent statute providing for investigation, inquiry, trial or otherwise dealing with offences.
46. Section 5 of the Code, a saving provision, reads as under:
'5. Saving. -- Nothing contained in the Code shall, in the absence of specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form or procedure prescribed, by any other law for the time being in force.'
The anatomy of saving incorporated in Section 5, though looks simple, is very subtle. Broadly speaking, the Section has three components to be separated - (1) the Procedure Code generally governs matters covered by it; (2) if a special or local law exists covering the same area, the latter law will be saved and will prevail; and (3) if there is a specific provision to the contrary, then that will over-ride the special or local law.
47. Section 26 of the Code prescribes the Criminal Courts, by which the offences under the Indian Penal Code or other laws, are triable. Under Clause (a), the High Court and the Court of Session have concurrent jurisdiction to try any offence under the Indian Penal Code. Judicial Magistrate of First Class and Judicial Magistrate of Second Class have been conferred jurisdiction to try such of the offences as are shown triable by them in the Schedule to the Code. There is no provision in the Code which bars the trial of a case by a superior Magistrate notwithstanding that it is competent for a Magistrate of a lower grade to entertain the case. A Court of Session has jurisdiction to try case once it has properly come before it, that is, on a legal and valid order of commitment.
48. A combined effect of the provisions contained in Sections 4, 5 and 26, referred to earlier, is that all offences under the Indian Penal Code are to be investigated, inquired into and tried or otherwise dealt with according to the provisions contained in it. In so far as the offences under other laws are concerned, the provisions in the Code would apply with all force, subject to the specific or contrary provision made by the law under which the offences are to be investigated or tried. Where the enactment provides special procedure only for some matters, such procedure would govern those matters and in regard to other matters, of which the enactment is silent, the provisions of the Code have to be applied.
49. In A.R. ANTULAY, APPELLANT v. RAMDAS SRINIVAS NAYAN AND ANR., RESPONDENTS AIR 1984 SC 718 : 1984 Cr.L.J. 647 the Hon'ble Supreme Court considered the position of a Special Court-Court of Special Judge, while dealing with Sections 8, 7 and 6 of the Criminal Law Amendment Act (46 of 1952), and held :
'27. It is, however, necessary to decide with precision and accuracy the position of a Special Judge and the Court over which he presides styled as the Court of a Special Judge because unending confusions have arisen by either assimilating him with a Magistrate or with a Sessions Court. The Prevention of Corruption Act, 1947, was enacted for more effective prevention of bribery and corruption. Years rolled by and experience gathered showed that unless a special forum for the trial of such offences as enumerated in the 1947 Act is created, the object underlying the 1947 Act would remain a distant dream. This led to the enactment of the Criminal Law Amendment Act, 1952. The Statement of Objects and Reasons accompanying the Bill refers to the recommendations of the Committee chaired by Dr. Bakshi Tek Chand appointed to review the working of the Special Police Establishment and to make recommendations for improvement of laws relating to bribery and corruption. To take the cases of corruption out of the maze of cases handled by Magistrates, it was decided to set up Special Courts, Section 6 conferred power on the State Government to appoint as many Special Judges as may be necessary with power to try the offences set out in Clauses (a) and (b). Now if at this stage a reference is made to Section 6 of the Criminal P.C. which provides for constitution of Criminal Courts, it would become clear that a new Court with a new designation was being set up and that it has to be under the administrative and judicial superintendence of the High Court. As already pointed out, there were four types of Criminal Courts functioning under the High Court. To this, list was added the Court of a Special Judge. Now, when a new Court which is indisputably a Criminal Court because it was not even whispered that the Court of Special Judge is not a Criminal Court, is set up, to make it effective and functionally oriented, it becomes necessary to prescribe its powers, procedure, status and all ancillary provisions. While setting up a Court of a Special Judge keeping in view the fact that the high dignitaries in public life are likely to be tried by such a Court, the qualification prescribed was that the person to be appointed as Special Judge has to be either a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. These three dignitaries are above the level of a Magistrate. After prescribing the qualification, the Legislature proceeded to confer power upon a Special Judge to take cognizance of offences for the trial of which a Special Court with exclusive jurisdiction was being set up. If a Special Judge has to take cognizance of offences, ipso facto the procedure for trial of such offences has to be prescribed. Now the Code prescribes different procedures for trial of cases by different Courts. Procedure for trial of a case before a Court of Session is set out in Chapter XVIII; trial of warrant cases by Magistrates is set out in Chapter XIX and the provisions therein included catered to both the types of cases coming before the Magistrate, namely, upon police report or otherwise than on a police report. Chapter XX prescribes the procedure for trial of summons cases by Magistrates and Chapter XXI prescribes the procedure for summary trial. Now that a new Criminal Court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of Courts under Section 6, Cr.P.C., by bringing it on level more or less comparable to the Court of Session, but in order to avoid any confusion arising out of comparison by level, it was made explicit in Section 8(1) itself that it is not a Court of Session because it can take cognizance of offences without commitment as contemplated by Section 193, Cr.P.C. Undoubtedly, in Section 8(3), it was clearly laid down that subject to the provisions of sub-sections (1) and (2) of Section 8, the Court of Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors. In contradiction to the Sessions Court, this new Court was to be a Court of original jurisdiction. The Legislature then proceeded to specify which out of the various procedures set out in the Code, this new Court shall follow for trial of offences before it. Section 8(1) specifically says that a Special Judge in trial of offences before him, shall follow the procedure prescribed in the Criminal Procedure Code for trial of warrant cases by Magistrates. The provisions for trial of warrant cases by the Magistrates are to be found in Chapter XXI of 1898 Code. A glance through the provisions, will show that the provisions therein included catered to both the situations, namely trial of a case initiated upon police report (Section 251 A) and trial of cases instituted otherwise than on police report (Sections 252 to 257). If a Special Judge is enjoined with a duty to try cases according to the procedure prescribed in foregoing provisions, he wilt have to first decide whether the case was instituted upon a police report or otherwise than on police report and follow the procedure in the relevant group of Sections. Each of the Sections 251A to 257 of 1898 Code which are in pari materia with Sections 238 to 250 of 1973 Code, refers to what the Magistrate should do. Does the Special Judge therefore become a Magistrate? This is the fallacy of the whole approach. In fact, in order to give full effect to Section 8(1), the only thing to do is to read Special Judge in Sections 238 to 250 wherever the expression 'Magistrate' occurs. This is what is called Legislation by incorporation. Similarly, where the question of taking cognizance arises it is futile to go in search of the fact whether for purposes of Section 190 which conferred power on the Magistrate to take cognizance of the offence, Special Judge is a Magistrate? What is to be done is that one has to read the expression 'Special Judge' in place of Magistrate, and the whole thing becomes crystal clear. The Legislature wherever it found the grey area clarified it by making specific provision, such as, the one in Sub-section (2) of Section 8 and to leave no one in doubt further provided in Sub-section (3) that all the provisions of the Criminal P.C. shall so far as they are not inconsistent with the Act apply to the proceedings before a Special Judge. At the time when the 1952 Act was enacted, what was in operation was the Criminal P.C. 1898. It did not envisage any Court of a Special Judge and the Legislature never wanted to draw up an exhaustive Code of Procedure for this new Criminal Court which was being set up. Therefore, it conferred power (taking cognizance of offences), prescribed procedure (trial of warrant cases by Magistrates), indicated authority to tender pardon (Section 338) and then after declaring its status as comparable to a Court of Session proceeded to prescribe that air provisions of the Criminal P.C. will apply in so far as they are not inconsistent with the provisions of the 1952 Act. The net outcome of this position is that a new Court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific question brought before it as Court of original Criminal jurisdiction, it had to refer to the Criminal P.C., undaunted by any designation clap trap. When taking cognizance, a Court of Special Judge enjoined the powers under Section 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by Magistrate though as and by way of status it was equated with a Court of Sessions. The entire argument inviting us to specifically decide whether a Court of a Special Judge for a certain purpose is a Court of Magistrate or a Court of Session revolves round a mistaken belief that a Special Judge has to be one or the other and must fit-in in the slot of the Magistrate or a Court of Session. Such an approach would strangulate the functioning of the Court and must be eschewed. Shorn of all embellishment the Court of a Special Judge is a Court of original Criminal jurisdiction. As a Court of original Criminal Jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original Criminal jurisdiction and being hide-bound by the terminological status description of a Magistrate or a Court of Session. Under the Code, it will enjoy all the powers which a Court of original Criminal jurisdiction enjoys save and except the ones specifically denied.'
50. From the law pronounced by the Hon'ble Supreme Court, it would be clear that the Special Court is neither a Court of Session nor a Court of Magistrate. It is a Court of original criminal jurisdiction. Section 14 of the Act gives power to the State Government for the purposes stated therein to specify a Court of Session to be a Special Court to try the offences under the Act. Such a Court of Session so specified as a Special Court, ceases to be a Court of Session as envisaged in the Code and becomes a Court of original criminal jurisdiction for the trial of the offences under the Act.
51. When a power is conferred on the Court of Session specifying it as a Special Court under the Act, the Court of Session is clothed with all the authority, power and jurisdiction to proceed with the case. The power as a Special Court is conferred on a Court of Session which is one in the hierarchy of Courts envisaged in the Code.
52. When such a Special Court is seized of the controversy in so far as the actual trial is concerned, it would be governed by the ordinary Rules of Procedure applicable to it as provided in the Code. The procedure for trial to be followed can only be that prescribed in the Code since there is no special provision made regulating a different procedure in the Act. To put it in other words, since the Act does not provide for the procedure to be followed by the Special Court, which is a Court of Session, its procedure regarding trial would be governed by the provisions contained in the Code.
53. In the cases on hand, a Court of Session is constituted to be the Special Court. A Court of Sessions is one established under the provisions contained in the Code. That Court of Session is constituted as a Special Court and the Act constituting it being silent regarding the procedure to be followed by it, the ordinary Rules of Procedure laid down in the Code for that Court for the trial are to be followed. The Special Court is just to take cognizance of the offence/s under the Act and proceed with the trial of the offence/s as provided under the Code. Section 193 has no application to the Special Court.
54. Section 14 of the Act provides for the purpose of providing speedy trial, specification for each District a Court of Session to be a Special Court to try the offences under the Act.
54(a). The question for consideration would be whether the word 'trial' has reference only to the stage of trial. The Apex Court has provided the answer to the question in its Decision in STATE OF BIHAR v. RAM NARESH AIR 1957 SC 387 : 1947 Cr.L.J. 567.
55. In the said case, the question involved was whether, in a case triable by the Court of Session, an application for the withdrawal under Section 494 of the Code of Criminal Procedure, 1898, with the consent of the Court, would lie at the committal stage. The Hon'ble Supreme Court considered the implication of the words 'inquiry and trial' with the legislative history of the words and held that Section 494 of the Cr.P.C., 1898, was wide enough to cover every kind of inquiry and trial and that the word 'trial' in the Section was not used in the limited sense for its application.
56. This authoritative pronouncement made by the Hon'ble Supreme Court should apply and would apply with all force to the word 'trial' in Section 14 of the Act. The resultant position is that the Court of Session specified as Special Court under Section 14 of the Act has not only got the power to try the offences, but has also got the power to make every kind of inquiry as a Criminal Court of original jurisdiction contemplated by the provisions contained in the Code.
57. The Code prescribes four methods of taking cognizance of an offence, namely, (a) upon a complaint, (b) upon a report of a Police Officer, (c) where the Magistrate himself comes to know of the commission of offences through some other source and (d) in the case of Court of Session, upon a commitment by the Magistrate.
58. The Special Court under the Act, is empowered to y cases concerning atrocities as defined in Section 2 of the Act. The word 'trial' takes within its ambit proceedings prior to actual trial as well.
59. In this view of the matter, it can be said that the Special Court can take cognizance of offence/s on circumstances excluding the one out of four well recognised modes, adverted to earlier, namely, upon commitment by a Magistrate as set out in Section 193,
60. In other words, a Special Court under the Act can take cognizance of an offence for trial in any one of the remaining three other modes under the Code.
61. If the acts alleged in the complaint constitute not only offence/s under the Act, but also under the Indian Penal Code, the Special Court can take cognizance of that complaint in respect of offence/s under the Indian Penal Code even without an order of commitment by a Magistrate as provided by Section 193 of the Code. In such a situation, the Special Court can try not only the offence/s under the Act, but also those falling under the Indian Penal Code,
62.1 n this context, it is worthwhile to note the provisions contained in Section 20, which gives over-riding effect to the provisions contained in the Act over any other law for the time being in force. Section 20 also throws much light that the provisions contained in Section 193 cannot be of any consequence to restrict the jurisdiction of the Special Court.
63. Now, Section 220 of the Code, which provides for the trial of more than one offence, requires to be considered in this context.
64. Section 220 of the Code reads:
'220. Trial for more than one offence.-
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in Sub-section (2) of Section 212 or in Sub-section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more of such acts.
(5) Nothing contained in this Section shall affect Section 71 of the Indian Penal code (45 of 1860).'
65. The Section is not controlled by the words 'not exceeding three' occurring in Section 219. There is nothing in Section 220 to warrant the rule that not more than three offences can be combined even if those offences have been committed in the same transaction. The question of applicability of Section 220 arises only where separate offences of different nature may form part of the same transaction. Where more offences than one are committed by each of the accused in one series of acts so connected together as to form the same transaction, such person can be charged with and tried for every such offence. If the offences are committed in the course of the same transaction, they may be tried together although they are more than three in number and extend over a period of more than one year.
66. The expression 'the same transaction' is an expression which from its very nature, is not susceptible to any exact definition. It must have been advisedly not defined because it has got this quality. It may not be possible to enunciate any comprehensive formula of universal applicability for the purpose of determining whether two or more acts constitute the same transaction. However, proximity of time, unity or proximity of place, continuity of action and community of purpose or design, are principal criteria for deciding whether certain acts form part of the same transaction or not. The real test for determination whether several offences were so connected together as to form one transaction, depends upon whether they are related together in point of purpose or as to cause and effect or as principal and subsidiary acts so as to constitute one continuous action. The essential condition is the continuity of action which involves essentially continuity or proximity of time. To determine whether or not a series of acts would form part of the same transaction, the most important points to be considered are whether there was a common purpose and design and continuity of action. It would be for the Court to decide whether in each case, there is sufficient continuity of purpose between the acts of jointly tried accused to justify it in finding that the transaction was in reality a single one, though composed of separate acts by the different accused.
67. It is admitted by both the sides that according to the prosecution the accused in Special Atrocities C.C.No. 11/1991 and the accused in Special Atrocities C.C.Nos. 41/1992, 46/1992 and 15/1993, committed the offences alleged against them in the course of the same transaction.
68. Section 220(3) of the Code covers cases where particular acts constitute offence falling within two or more separate definitions of any law by which offences are defined or punished. When single act constitutes an offence punishable under two different provisions of law, it falls squarely within the scope of Section 220(3) of the Code.
69. Under Section 220(4) of the Code, if several acts, of which one or more than one, would, by itself or themselves, constitute an offence, constitute when combined a different offence, the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined and for any offence constituted by any one or more of such acts. So if various acts alleged against the accused constitute an offence under the Act and combination of those acts constitute offence under the Indian Penal Code as well, the accused can be tried for both in the same proceedings. Thus, if the acts alleged against the person accused of an offence, constitute atrocity/atrocities as defined in the Act and also an offence under the Indian Penal Code as well, the accused can be tried for both in the same proceedings. No order of commitment by the Magistrate would be called for.
70. In Re: DIRECTOR GENERAL OF PROSECUTION, PETITIONER 1993 Cr.L.J. 760, the questions considered were-(1) what is the correct procedure to be followed by the Special Court when it receives the final report disclosing the offence punishable under Section 3 of the Act as well as offence punishable under Section 376 of the Indian Penal Code? and (2) if the course followed by the Court in taking cognizance of the offence punishable under the Indian Penal Code also along with the offence punishable under Section 3 of the Act were wrong, what further procedure is to be followed?
71. The Kerala High Court, on a consideration of the provisions contained in the Act and the relevant provisions contained in the Code, held that where a Special Court specified in Section 14, receives a final report disclosing offence punishable under Section 3 of the Act as well as offence under Section 376 of the Indian Pena! Code, the accused can be tried for both in the same proceedings with no order of commitment by Magistrate for the offence punishable under Section 376 of the Indian Penal Code required.
72. I am in respectful agreement with the view taken by the Kerala High Court in Re. Director General of Prosecution (supra).
73. Sri Praveen Raikote, learned Counsel, inviting my attention to a Decision of the Madhya Pradesh High Court in MEERA BAI, APPLICANT v. BHUJBAL SINGH AND ANR., RESPONDENTS CRIMES XI 1994 (3) 894, contended that the view taken in Special Atrocities C.C.No. 11/1991, which is the subject matter of Criminal Revision Petition No. 114/1993, is a correct view that needs to be maintained and affirmed and that the view taken in Special Atrocities C.C.Nos. 41/1992, 46/1992 and 15/1993, which are the subject matter of Criminal Revision Petitions Nos. 586, 587 and 588 of 1994 respectively, need to be set aside.
74. Indeed, it is true that in Meera Bai's case (supra), the learned Single Judge has taken the view that a Sessions Court specified as a Special Court under Section 14, cannot try an offence under the Act without its commitment by a Court of Magistrate, as provided under Section 193 of the Code. The learned Single Judge dissenting from the contrary view taken by the same High Court in SUKHLAL JADAV v. STATE OF MADHYA PRADESH AND ORS Crl.R.P. No. 149 of 1992 DD 14.7.1993. and holding that the Decision of the Hon'ble Supreme Court in the cases of State of Bihar v. Ramnaresh (supra) and A.R. Antulay v. Ramesha Srinivasa Nayak (supra), would not apply, and disagreeing with the view expressed by the Kerala High Court in Re. Director General of Prosecution (supra), held that the matter was required to be referred to a Larger Bench for resolving the controversy.
75. The learned Counsel did not inform me as to whether the Larger Bench of the Madhya Pradesh High Court was constituted and if so, whether the controversy referred, has been resolved.
76. Since I am in respectful agreement with the view taken by the Kerala High Court, I hold that the order made by the learned trial Judge in Special Atrocities C.C.No.11/1991 challenged in Cr.R.P.No.114/1993, which has not taken into consideration the various provisions contained in the Code referred to in the course of this Common Order and the other aspects bearing on the question, has to be set aside and the common order made by the learned trial Judge dated 15.7.1994 in Special Atrocities C.C.Nos.41/1992, 46/1992 and 15/1993 challenged in Cr.R.Ps.Nos. 586/1994, 587/1994 and 588/1994 respectively, is to be maintained and affirmed.
77. In the result, for the reasons aforesaid, I proceed to make the following: