S.K. Seth, J.
1. This appeal by the appellants, who are husband and wife, is against their conviction under Section 3(1)(ii) and 3(1)(xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'). For the said offences, Additional Sessions Judge, Garoth has handed down sentence of 2 years' rigorous imprisonment plus fine of Rs. 1,000/- each or to undergo simple imprisonment of 3 months in default of payment of fine. Trial Court passed the impugned judgment in Special Criminal Case No. 64 of 1991.
2. Prosecution case in brief. On 10-8-1991, appellants, who are neighbours of Kaluram (P.W. 2), dumped excreta and waste matter in his courtyard with intent to force Kaluram to leave the house purchased by him. When his wife, Shaynibai (P.W. 1) objected to it, both appellants started pelting stones from the roof-top of their adjoining house and, caused injuries to Shaynibai (P.W. 1) and her daughter Ku. Lilabai. Incident is alleged to have taken place in the afternoon. At the time of incident, Kaluram accompanied by Kacherulal (P.W. 5), was on his way back to home. When they had almost reached the home, both Kaluram and Kacherulal, heard the hue and cry raised by Shaynibai. They immediately rushed to the rescue of Shaynibai. Upon entering home, Kaluram found Shaynibai in prostrate position in the courtyard while appellants were pelting stones so he immediately brought her inside the house, thus, in the process he also received stones thrown at him causing injuries. Kaluram immediately took Shaynibai to the Police Station, Chandwasa, where she lodged FIR (Ex. P-1). Same day on medical examination, Dr. K.C. Vijayvargiya (P.W. 4) found various injuries on body of Shaynibai, Ku. Lilabai and Kaluram as per his reports (Ex. P-3 to Ex. P-5) respectively. Since complainant belonged to Bagri Caste, the Police after completing investigation filed charge sheet and the appellants were put to trial in Special Criminal Case No. 64 of 1991 as mentioned above.
3. At trial, appellants abjured their guilt and submitted that they have been falsely implicated as the appellant No. 1 Bhanwarlal had filed a civil suit against Kaluram and his predecessor-in-title, Ramchandra (P.W. 8). Learned Additional Sessions Judge, Garoth, on the basis of prosecution evidence, came to the conclusion that both appellants are guilty of committing offences on both count and convicted and sentenced them as mentioned above.
4. Shri B.A. Nigam, learned Counsel appearing for the appellants raised three contentions. His first submission is that the convictions and sentence is illegal as the entire trial was vitiated because the learned Special Judge directly took cognizance without there being any committal proceedings. In support of this contention, he placed reliance on the decision of the Supreme Court reported in AIR 2000 SC 740. Second ground of attack is that the conviction and sentence passed by the learned Additional Sessions Judge, Garoth to the Court of Sessions Judge, Mandsaur is illegal as the trial was done by a Judge who was not specified as Special Judge under Section 14 of the Act. In support of this contention he placed reliance on the decision of learned Single Judge of this Court reported in 1985 MPLJ 591. Lastly, it is contended that on the established facts of the case, provisions of the Act are not attracted, and at best an offence punishable under Section 323, IPC is made out and not under Section 3(1)(ii) and 3(1)(xv) of the Act for which at this distant point of time, sentence of fine is sufficient. As an alternative limb of this submission, it is submitted that if appellants are found guilty of offences punishable Section 3(1)(ii) and 3(1)(xv) of the Act, this Court may deal with them leniently and award minimum sentence prescribed under the law.
5. Per contra, Shri A. Salim, learned Penal Advocate, appearing for the State supported the judgment of the Trial Court and submitted that no interference is warranted with the conviction and sentence of the appellant. According to him, from the evidence of Shaynibai (P.W. 1), Kaluram (P.W. 2), Kacherulal (P.W. 5), Ramchandra (P.W. 8), it is clear beyond any reasonable doubt that complainant belong to Bagri Caste which is notified Scheduled Caste for the State of Madhya Pradesh. Appellants have caused injuries to Shaynibai, Ku. Lilbai and Kaluram as is clear from the evidence of Dr. K.C. Vijayvargiya (P. W, 4) who had examined them on the date of incident and gave reports (Ex. P-3 to Ex. P-5) respectively. It is further contended that prosecution has also proved that appellant No. 1, wanted to grab at a throw away price the house purchased by Kaluram from Ramchandra. In order to achieve this object, appellants dumped excreta and waste matter in his courtyard, with intent to force Kaluram leave to the house, and thereby committed offences punishable under Section 3(1)(ii) and 3(1)(xv) of the Act. As regards the first two legal points raised on behalf of the appellants, Shri Salim on the strength of provisions contained in Sections 4, 9 and Chapter XXXV of the Code of Criminal Procedure, 1973 (hereafter referred to as 'the Code') contended that at no earlier point of time appellants had raised these objections, therefore, now it is too late in a day to canvass these objections, specially when no prejudice is shown to have been caused to the appellants. He placed reliance on the decisions reported in AIR 2001 SC 3372 and AIR 1996 SC 905 respectively.
6. I have heard Counsel for the parties at length and perused the record of the Trial Court. Before considering, the legal submissions, it would be not out of place to mention that undisputedly the cognizance of the offence was taken by the Specified Judge, Mandsaur without any committal proceedings. The charge sheet was directly filed in the Court of Sessions Judge, Mandsaur, which is specified by the State Government under Section 14 of the Act as Special Judge for Mandsaur District vide Notification (F. No. 1-2-90-XXI-B (i), dated 30th January, 1990 published in M.P. Rajpatra (Asadharan), dated 30-1-1990. It is also undisputed that after the Special Judge (Sessions Judge), Mandsaur took the cognizance, the case was made over to the learned Additional Sessions Judge, Garoth, who after the trial convicted and sentenced appellants as mentioned above.
7. While advancing first submission, learned Counsel for appellants submitted that neither provisions the Act nor the Code empowers the Special Court of Sessions to take cognizance of any offence punishable under the Act as a Court of original jurisdiction, unless the Magistrate commits the case. The original jurisdiction in this regard is vested only with the Magistrate. It is further submitted that Section 209 of the Code deals with the commitment of the case to the Court of Sessions when offence is triable exclusively by it. In support of the submission, he placed strong reliance on the decision of the Supreme Court in the matter of Gangula Ashok v. State of Andhra Pradesh, reported in 2000(2) M.P.H.T. 101 (SC) = AIR 2000 SC 740. No doubt, Their Lordships of the Supreme Court in above mentioned case have held that neither in the Code nor in the Act, is there any provision that the specified Court of Session (Special Court) can take cognizance of the offences under the Act as a Court of original jurisdiction, without the case being committed to it by a Magistrate. However, in a subsequent decision in the matter of State of Madhya Pradesh v. Bhooraji, reported in 2002(1) M.P.H.T. 1 (SC) = AIR 2001 SC 3372, after considering the decision in Gangula (supra) and other decisions, Their Lordships of the Supreme Court allowed the State appeal and set aside the order of retrial as ordered by the Division Bench of this Court and remanded the matter for a decision on merit in accordance with law. Their Lordships of the Supreme Court while allowing the State appeal, held that no prior committal proceedings before any Magistrate was necessary in view of the change in legal position brought about by the Full Bench decision of this Court reported in 1996 MPLJ 141, which stood overruled by the decision given in Gangula 's case (supra). Their Lordships of the Supreme court in Bhooraji's case further held that the procedural irregularity caused no prejudice to the convicted persons resulting into failure of justice and this belated technical plea would not render trial by Court of competent jurisdiction without jurisdiction. Such a Court will not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by non-compliance of procedural requirement. The inability to take cognizance by the Sessions Judge without a committal order does not vitiates the trial by a specified Sessions Court.
In view of law laid down by the Supreme Court in Bhooraji 's case, this Court is of the considered opinion that the first submission, though on the face of it looks very attractive, but upon close scrutiny is found without any substance or merit. In the present case, appellants have failed to point out any prejudice or disadvantage when the Sessions Judge, Mandsaur (Specified Judge) took the cognizance of the case without any committal order on the basis of the legal position adopted by the Full Bench of this Court. The procedural lapse would not render the Specified Judge incompetent to take cognizance. If the appellants felt aggrieved by the procedural lapse, then they ought to have raised their objections at the earliest point of time. They did not raise this plea at any stage before the trial. This plea has been raised for the first time only when the appeal was heard finally in the year 2003. Even at the time of hearing it was not pointed out what prejudices or disadvantages were caused to the appellants when the cognizance taken. In view of the discussion, this Court finds no substance or merit in the first legal submission made on behalf of appellants. Hence the same fails.
8. After analyzing the decision of the learned Single Judge, Jasbir Singh v. State of M.P., reported in 1985 MPLJ 591, in the context of second legal submission, this Court is of the considered opinion that case relied upon in no way advances the case of appellants. In Jasbir Singh case (supra), learned Single Judge was concerned with the question where the trial was conducted by the Additional Sessions Judge, who was not constituted as a Special Judge under Section 12A of the Essential Commodities Act, 1995. Section 12A of the E.C. Act, authorises State Government to constitute by gazette notification as many Special Courts, as may be necessary. It further provides that Special Court shall consist of Single Judge, who shall be appointed by the High Court upon request made by the State Government. No person can be appointed as a Judge of the Special Court under Section 12A of the E.C. Act, unless he is qualified for appointment as a Judge of High Court or has, for aperiod not less than one year, been a Sessions Judge or an Additional SessionsJudge. Thus, under the E.C. Act, there are two stages, before Special Courtcan be said to be constituted. First stage is the constitution of Special Courtby issuance of Notification in the Official Gazette followed by the second stageof appointment of the individual in consultation with High Court to functionas Judge of Special Court. This elaborate procedure is conspicuously missingin Section 14 of the Act of 1989. Section 14 of the Act of 1989 speaks only ofspecification of 'Court of Session' for trial of offences punishable under theAct of 1989. In absence of any definition of expression 'Court of Session' inthe Act of 1989, one is required to look into the provisions of the Code in viewof Section 2(f) of the Act, to ascertain whether 'Court of Session' wouldinclude 'Additional Sessions Judge' within it ambit.
9. This question came up directly for consideration before the Division of this Court in the matter of Bar Association, Jhabua v. State of M.P., reported in 1995 MPLJ 562. Division Bench after considering relevant case law held that a 'Court of Session' as contemplated under Section 9 of the Code is to be presided over by a Sessions Judge, but the Court of Session may also have Additional and Assistant Sessions Judges. The word Court in the expression of Court of Session in a Sessions Division may appear to mean a Single Court presided over by an officer; but in the context of Section 9 of the Code, it means a Court of Session of the Sessions Division, consisting of Sessions Judge, Additional and Assistant Sessions Judges and all of them would be exercising jurisdiction in the Court of Session and their judgments and orders would be those of Court of Session therefore, the expression Court of Session used in Section 14 of the Act comprehends within its scope Court of Session in which Sessions Judge and Additional Sessions Judges are functioning. In Paragraph 9 of the reported decision, it has been held as under:--
'9. 'Court of Session' referred to in Section 14 of the 1989 Act comprehends Sessions Judge and Additional Sessions Judges, if any. However, Additional Sessions Judge has jurisdiction to try an offence under the Act, if it is made over to him or her by the Sessions Judge.'
10. In view of the discussion and the binding decision of the Division Bench, this Court finds no illegality when the Special Judge, Mandsaur after taking cognizance of the offences made over the case for trial to the learned Additional Sessions Judge, Garoth. Thus the second submission has also no force and is hereby rejected.
11. Now coming to the third submission made by the learned Counsel for the appellants, from the prosecution evidence it is clear that complainant belongs to Bagri caste. Undisputedly Bagri caste is a notified Scheduled Caste for the State of Madhya Pradesh. Kacherulal (P.W. 5) and Ramchandra (P.W. 8) duly corroborate the testimony of Shaynibai (P.W. 1) and Kaluram (P.W. 2) that appellant No. 1 had an eye over the house purchased by Kaluram from Ramchandra and in order to achieve the desire by forcing Kaluram and his family to leave the house, appellants had dumped excreta and waste matter in the courtyard. When Shaynibai objected to this, appellants pelted stones and caused injuries to Shaynibai, Ku. Lilbai and Kaluram as is clear from expert evidence of Dr. Vijayvargiya (P.W. 4). Thus, it is clear without any doubt that appellants arc guilty committing atrocities punishable under the Act. The Trial Court after appreciating evidence has rightly come to conclusion that the appellants are guilty of having committed offences as per Section 3(1)(ii) and 3(1)(xv) of the Act and this Court see no reason nor justification to interfere with the said finding and conclusion of the learned Trial Court. At this stage, learned Counsel for the appellants submitted that a lenient view might be taken looking to the age of appellants and the fact that they have children to look after. It is also contended that this is their first offence and they have not misused their liberty either during trial or pendency of this appeal. It is also submitted that incident is of the year 1991 and if after a decade, appellants at this distant point of time are required to undergo their custodial sentence for two years as awarded by the Trial Court, it would be too harsh a punishment.
12. After considering the submissions of the learned Counsel for the parties, this Court is of the considered opinion that the sentence awarded to the appellants deserves to be modified. It is accordingly ordered that each appellant shall undergo six months simple imprisonment and shall also pay fine of Rs. 2000/-, jointly. Out of the fine amount Rs. 1500/- shall be paid to the complainant Shaynibai as compensation under Section 357 of the Code. In default of payment of fine appellants shall undergo simple imprisonment of two months. The appellants are on bail; their bail bonds are hereby cancelled. It is directed that appellants shall surrender before J.M.F.C., Garoth on or before 30th June, 2003 failing which the concerned J.M.F.C. shall take appropriate steps to secure their presence to carry out the sentence awarded by this Court. Thus, the appeal is partly allowed to the extend as indicated above.