V.S. Kokje, J.
1. The respondents Nos. 2 and 3 Lakha Ram and Ghuda Ram, belonging to a Scheduled Caste, filed a complaint against the petitioners Bhura Ram, Aaidan, Asha Ram and Chaina Ram alleging commission of offences under Section 3 (i) (iv) (v) (ix) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter called for the sake of brevity and convenience as the SC/ST Act) before the Additional Chief Judicial Magistrate, Phalodi. The learned Magistrate in exercise of powers under Section 156 (3) of the Code of Criminal Procedure (hereafter called as the Code) directed the Station House Officer, Phalodi to investigate and report the result of investigation to the learned Magistrate. On this, on 25-9-92 a FIR No. 144/92 was registered at the Police Station, Phalodi and after investigation, a final report was made to the learned Magistrate (FR No. 40/92). The petitioners opposed the report by lodging a protest petition. The learned Magistrate after hearing the parties accepted the final report. Aggrieved by this order the respondents complainants filed Criminal Revision Petition No. 6/94 before the learned Additional Sessions Judge, Phalodi. On 13-4-94, the learned Additional Sessions Judge allowed the revision petition, set aside the order which accepted the Final Report and rejected the protest petition, and directed the learned Magistrate to take cognizance of the offences against the petitioners and to proceed in accordance with law.
2. The aforesaid order of the learned Additional Sessions Judge was challenged by filing a petition under Section 482 of the Code of Criminal Procedure before this Court by the petitioners. In this case an objection was raised that the learned Additional Sessions Judge had no jurisdiction to hear the revision petition. It was also contended in the petition that on constitution of Special Courts, the Special Courts alone had jurisdiction to deal with the cases under the Act and no other Court could take cognizance of any offence under the Act or could deal with any such cases.
3. On 14-8-96 a learned single Judge, hearing the cases, directed the matter to be referred to a Larger Bench disagreeing with the view taken by another single Bench of this Court in Kedar Nath v. State of Rajasthan, 1993 Cri LR (Raj) 613 on the following points :-
1. Whether after establishment of Special Court under Section 9 Cr.P.C. read with Section 14 of Act No. 33 of 1989 vide Notification dated 30-1-90, the Special Court alone has power to take cognizance under Section 190 Cr.P.C. without committal proceedings by a Magistrate and Section 193 Cr.P.C. is not applicable for trial of offences under Act No. 33 of 1989?
2. Whether after establishment of a Special Court within the territorial limits of Jodhpur, a Magistrate has no jurisdiction to entertain a complaint for the offences under Act No. 33 of 1989 and has no jurisdiction to direct the investigation of such offences in exercise of his power under Sub-section (3) of Section 156 Cr.P.C?
3. Whether if any complaint is made for an offence under Act No. 33 of 1989 before a Magistrate within the territorial limits of Jodhpur and such complaint is made in writing, then, he is under legal obligation under Section 201 Cr.P.C. to return such complaint to the Special Court established under Section 14 of Act No. 33 of 1989 with an endorsement to that effect and if the complaint is not made in writing, direct the complainant to approach the Special Court for trial of offences under Act of 33 of 1989?
This is how the case has come up before the Full Bench.
4. In order to appreciate the controversy a survey of the relevant provisions of law would be useful.
5. Section 4 of Code of Criminal Procedure provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. It also provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions 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.
6. Section 5 of the Code provides that nothing contained in the Code shall, in the absence of a 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 of procedure prescribed, by any other law for the time being in force.
7. Section 26 of the Code reads as under :-
Section 26 :- Courts by which offences are triable :- Subject to the other provisions of this Code -
(a) any offence under the Indian Penal Code may be tried by
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable;
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable.
8. Part II of the Classification of offences in the First Schedule provides for trial of offences under other laws than the Indian Penal Code. It provides that if the offence is punishable with death sentence or life imprisonment or imprisonment for more than 7 years it would be triable by a Court of Session. If the offence is punishable with imprisonment of 3 years or more but not more than 7 years it would be triable by a Magistrate of First Class and if the offence is punishable with imprisonment for less than 3 years with fine only it would be triable by any Magistrate.
9. Section 156 of the Code reads as under:-
Section 156 :- Police Officer's power to investigate cognizable case :- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.
10. Section 190 of the Code relates to cognizance of offences by Magistrates. It reads as under:-
Section 190 :- Cognizance of offences by Magistrates :- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.
11. Section 193 of the Code relates to cognizance of offences by Courts of Session. It reads as under:-
Section 193.:- Cognizance of offences by Courts 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.
12. Chapter XV of the Code relates to complaints to Magistrate. Section 200 relates to examination of complainant and Section 201 prescribes the procedure by a Magistrate not competent to take cognizance of the case. Section 201 of the Code reads as under :-
Section 201 :- Procedure by Magistrate not competent to take cognizance of the case- If the complaint is made to a Magistrate who is not competent to fake cognizance of the offence, he shall,-
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court.
Section 202 of the Code reads as under :-
Section 202 :- Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose or deciding whether or not there is sufficient ground for proceeding;
Provided that no such direction for investigation shall be made,-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by' a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In any inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon, the complainant to produce all his witnesses and ; examine them on oath.
(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
Section 203 of the Code reads as under :-
Section 203:- Dismissal of complaint:- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
13. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 provides for creation of a Special Court in Section 14. Section 14 reads as under :-
Section 14 :- Special Court :- For the purpose of providing for speedy trial, the State Govt. shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the of fences under this Act.
14. Section 20 of the SC/ST Act gives out overriding effect over any other law. It reads as under :-
Section fz :- 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.
15. It would be seen from the above provisions that the jurisdiction of the normal Courts under the Code of Criminal Procedure can be ousted either by any of the situations provided by Section 4 (2), Section 5 and Section 26 of the Code. Under the scheme, all offences under the laws other than IPC have to be investigated, inquired into, tried and otherwise dealt with in accordance with the provisions contained in the Code by virtue of Sub-section 4 (2) of the Code except where any other enactment for the time being in force regulates the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Code and Section 20 of the SC/ST Act are really complementary of each other. Section 5 of the Code declares that the Code shall not have overriding effect over any special or local law conferring any special jurisdiction or power on any other body or prescribing special forum of procedure unless specific provisions to the contrary is made. Clause (b) of Section 26 makes it clear that any offence under any other law shall be tried by such Court as is mentioned in that law and if no such Court is mentioned it may be tried by the High Court or any other Court by which such offence is shown in the First Schedule to the Code to be triable. We have therefore first to see as to whether the SC/ST Act has provisions which override the Code and to what extent.
16. The nature of the Special Court created under Section 14 of the SC/ST Act is clearly that of a Special Court. Not only that the title of the Section reads 'Special Court' but it has been said in it in so many words that a Court of Session of each district shall be specified to be a Special Court to try offences under the SC/ST Act. The question is whether by necessary implication specification of such a Court of Session to be a Special Court for trying offences under the Act would oust the jurisdiction of the Courts created by the Code of Criminal Procedure to deal with the cases in which allegations of commission of offences under the SC/ST Act are made. The SC/ ST Act does not provide for procedure to try the offences under the Act. It merely creates a Special Forum without prescribing a Special Procedure for dealing with or trying such cases. There are analogous enactments in which not only the special forum but special procedure also has been specifically prescribed.
17. The questions referred are somewhat overlapping, we would therefore formulate the following points :-
(i) Whether a Court of Session specified under Section 14 of the SC/ST Act by implication excludes the jurisdiction of all other Courts to deal with the cases under the Act?
(ii) Whether such Special Court can take cognizance of cases triable by Sessions (Court) without committal proceedings under Section 193 Cr.P.C?
(iii) Whether the Magisterial Courts established under the Code on establishment of the Special Court under Section 14 of the SC/ST Act, cease to have jurisdiction to deal with complaints relating to offences under the SC/ST Act and to direct investigation of such offences under Section 156 (3) of the Code?
(iv) Whether a Magisterial Court under the Code has to return a complaint made to it under Section 200 of the Code relating to an offence under the SC/ST Act to the complainant for presentation to proper Court i.e. Special Court specified for the area?
18. A bare reading of Section 14 of the SC/ST Act would show that Special Court is created to try the offences under the Act. The jurisdiction of the Court is not by express words or necessary implication limited to cases triable by Court of Session alone. There is therefore no indication that the legislative intent in enacting the provision was to create a Special forum having the limited jurisdiction to try such offences only which would otherwise have been triable by a Court of Session.
19. In Kedar Nath v. State of Rajasthan, 1993 Cri LR (Raj) 613 (Supra) the learned single Judge took the view that as there was no express provision for the Special Court or the Sessions Judge exclusively to take cognizance of the offences under the SC/ST Act, the power of the Magistrate to take cognizance under Section 190 was not excluded and the Sessions Court though was exclusively entitled to try the Sessions cases was not empowered to take cognizance unless the case is committed to it under Section 193 of the Code. It was also held that taking cognizance was not part of trial. Pointing out difference between the scope and ambit of direction to investigate under Section 156 (3) and under Section 202 of the Code, it was observed that the two provisions operate in distinct spheres at different stages. Under Section 156 (1) read with Section 154 of the Code the police exercise plenary powers to investigate into any cognizable offence not depending upon cognizance. It was further observed that the information to initiate such pre cognizance investigation may emanate from any source, including information from a Court. The order under Section 156 (3) by a Magistrate to investigate is in the nature of information or reminder to police to carry out its obligation under Section 156. As regards complaints filed under Section 200, the Court observed that a Magistrate has two options, one to send the complaint to police for investigation without taking cognizance of offence which will again be exercise of powers under Section 156 (3) of the Code. The other course open to him is to take cognizance and proceed in the manner provided under Section 200 and other provisions of the Code. If he is satisfied that there was sufficient ground to proceed further he may secure the presence of the accused before him by issuing summons or warrant as the case may be.
20. The learned single Judge who referred the case to the Full Bench differing from the aforesaid view has observed that after establishment of Special Court within the meaning of Section 14 of the SC/ST Act, it is impossible to hold that Special Court can take cognizance of an offence under the aforesaid Act for trial only on proper committal by a Magistrate as envisaged by Section 193 Cr.P.C. The learned single Judge while referring the matter was also of the view that the Special Court could take cognizance of offence without committal proceedings before the Magistrate.
21. Cases decided by various High Courts have been cited before us. Some of them directly deal with the SC/ST Act while others deal with provisions regarding Special Courts contained in some other enactments.
22. A Full Bench of the Kerala High Court in circumstances akin to the facts of the case in hand, held that committal proceedings were not indispensable as a prelude to the case being tried before the Special Court and Section 193 Cr.P.C. cannot have any application to trial of a case by a Special Court under the SC/ST Act. The Full Bench took the view that Section 14 of the Act enables the Special Court to exercise original jurisdiction and further held that a Magistrate had no jurisdiction to take cognizance of case under the SC/ST Act and has to return any such case filed before him for presentation before the proper Court.
23. A single Bench of Punjab and Haryana High Court in Raj Mal v. Rattan Singh, 1998 Cri LJ 3922 took the view that the Special Court under the SC/ST Act could take cognizance of a case triable by Sessions (Court) without committal proceedings before a Magistrate. 24. Another single Bench of Punjab and Haryana High Court in Jyoti Arora v. State of Haryana, 1998 Cri LJ 2662 took the contrary view and held that the Special Court could not take cognizance of offence as a Court of original jurisdiction unless the case is committed to it by a Magistrate under Section 193 of the Code.
25. A single Bench of the Allahabad High Court in Pappu Singh v. State of U.P., 1995 Cri LJ 2803 took the view that under Section 190 of the Code only .Magistrate could take cognizance of offence and Section 193 forbids sessions Courts from taking cognizance without committal proceedings as the Special Court was essentially a Court of Session.
26. A Full Bench of Madhya Pradesh High Court in Anand Swaroop Tiwari v. Ram Ratan Jatav, 1996 MPLJ 141 held that Special Courts under the ST/SC Act are not to function as Sessions Courts but as Courts of original jurisdiction. Section 193 of the Code of Criminal Procedure does not apply to the proceedings under the Act and committal orders are not required, Special Court could take cognizance on private complaints after following the procedure provided in the Code in relation to private complaints.
27. The other rulings cited at the Bat have little application to the fact-situation of the casein-hand. Most of them arise under other enactments creating Special Courts which have express provision ousting jurisdiction of other Courts and conferring exclusive jurisdiction on Special Court created by them.
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 it 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 practiced 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 is 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.
30. The next question is as to whether the Special Court created by Section 14 of the SC/ST Act ousts the jurisdiction of all other Magistrates ' to deal with the cases in which allegations for commission of offence under the SC/ST Act have been made? It is noteworthy that Section 14 of the SC/ST Act creates a Special Court to 'try' the, offences under the Act. This by implication means that no other Court can try the offences under the Act. In Anand Swaroop's case the Full Bench of the Madhya Pradesh High Court has quoted the s decision of the Supreme Court in State of Bihar v.RamNareshPandey, AIR 1957 SC 389 : 1957 Cri LJ 567. (sic) observed by the Supreme Court s in that case after going through the meaning of the word 'trial' in several dictionaries that the : words 'tried' and 'trial' appeared to have no fixed or universal meaning though in certain provisions in the Code they have been used in the sense of reference to a stage after the inquiry. It was further observed that there was no reason why the words used in another context should necessarily be limited in their connotation and significance to a stage after the inquiry. They are the words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration. The Full Bench of the M.P. High Court understood the words to mean to apply to all stages including taking cognizance, inquiry in the technical sense and the trial in the technical sense. The Full Bench also expressed that a contrary view was not impossible but in the context of the provisions they took the wider meaning of trial to include the stages of taking cognizance, inquiry etc.
31. To our mind the view taken by the Full Bench of the M. P. High Court is acceptable but to the extent of permitting the special Court to deal with the cases in all stages including taking cognizance, inquiry in the technical sense and trial in the technical sense. However, so far as ouster of jurisdiction of the Magisterial Courts is concerned, the same meaning cannot be given to the word 'try' to exclude the jurisdiction of all other Magistrates. In the context of the SC/ST Act and the Code of Criminal Procedure and on a harmonious construction of the provisions of Section 190 of the Code of Criminal Procedure and Section 14 of the SC/ST Act it can be said that the other Magistrates having jurisdiction over the area do not loose their jurisdiction to deal with the cases involving offences under the SC/ST Act on creation of a Special Court for the area under the SC/ST Act even at pre-trial stages. So far as the ouster of jurisdiction is concerned, the words to 'try' employed in Section 14 of the Act would be confined to its narrower meaning which does not include pre-trial stage. Thus in our view under Section 156 (3), a Magistrate having jurisdiction over the area could order investigation under Sub section (1) of Section 156 of the Code. Thus if any police report or a complaint is received by a Magistrate having jurisdiction over the area, under Section 190 of the Code of Criminal Procedure he may deal with the case up to the pre-trial stages.
32. A Full Bench of Rajasthan High Court in Dalip Singh v. State, 1989 Cri LJ 600 has held that the definition of 'inquiry' in the Code puts it beyond doubt that an 'inquiry' is different from 'trial' and that the 'inquiry' stops when the trial begins. The stage prior to framing of charge be it in the Court of a Magistrate or the Court of Session is the stage of inquiry when the Court applies its mind to make out whether it should proceed with the trial or not.
33. The Supreme Court in State of U. P. v. Lakshmi Brahman, AIR 1983 SC 439 : 1983 Cri LJ 839 observed that from the time the accused appears or is produced before the Magistrate with the police report under Section 170 and Magistrate proceeds to enquire whether Section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceedings before the Magistrate would be an inquiry as contemplated by Section 2 (g) of the Code.
34. Harmoniously construing the various provisions of the Code as well as that of SC/ST Act and keeping in view the objects 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 Act 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 i 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.
Reference answered accordingly.