Somalaiappan Vs. Palanisamy - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169045
CourtChennai High Court
Decided OnSep-25-2013
JudgeP.DEVADASS
AppellantSomalaiappan
RespondentPalanisamy
Excerpt:
in the high court of judicature at madras dated :25. 09.2013 coram: the hon'ble mr.justice p.devadass crl.o.p.no.22043 of 2013 and m.p.no.1 of 2013 somalaiappan ... petitioner vs 1.palanisamy 2.kanthasamy 3.dhandapani 4.thangavel 5.eswaramoorthy 6.shanmugam 7.stalin murugesan 8.ponnusamy 9.sadakadai subramani @ balasubramaniam 10.karikalan 11.govinthammal 12.state rep. by inspector of police, vellakoil police station. ... respondents prayer: petition filed under section 482 of the criminal procedure code to direct the district magistrate/the district collector, tiruppur district, tiruppur to appoint mr.b.mohan, senior advocate as desired by the petitioner/victim for conducting the prosecution in s.c.no.1 of 2013 on the file of the special judge(principal sessions judge), tiruppur. for petitioner : mr.m.guruprasad for respondents : mr.c.emalias for r-12 addl. public prosecutor order somalaiappan, the defacto complainant in the special case in s.c.no.1 of 2013, pending before the court of the learned special judge under scheduled castes and scheduled tribes (prevention of atrocities) act(principal sessions judge), tiruppur, came forward with this petition under section 482 cr.p.c. for issuance of direction to the district magistrate/the district collector, tiruppur district, tiruppur to appoint mr.b.mohan, a senior advocate to conduct prosecution in the said case.2. on the complaint of the petitioner, a case in crime no.2602 of 2010 for offences under sections 147, 323 ipc and 3(i)(x) of scheduled castes and scheduled tribes (prevention of atrocities) act, 1989, (shortly hereinafter sc/st(pa) act) has been registered by the 12th respondent, namely, the inspector of police, vellakovil police station. the deputy superintendent of police, kangeyam sub-division, kangeyam, tiruppur district, investigated the case. he filed the final report under section 173(2) cr.p.c. for offences under section 147, 294(b), 323 r/w 149 ipc and 3(i)(x)(xiv) of s.c/s.t.(p.a) act, as against respondents 1 to 11 before the committal magistrate.3. the learned magistrate took cognizance thereon in a preliminary register case and committed the case to the court of special judge(principal sessions judge) under sc/st (p.a) act, tiruppur. now, respondents 1 to 11 are being prosecuted before the said judge in s.c.no.1 of 2013. the prosecution is being conducted by the special public prosecutor.4. petitioner presented a petition to the district collector, tiruppur district to engage mr.b.mohan, an advocate having long standing bar experience and who had conducted large number of criminal cases including cases under sc & st(pa) act, to conduct the prosecution. however, the district magistrate has not taken any action.5. the learned counsel for the petitioner would refer to rule 4(5) of the scheduled castes and scheduled tribes (prevention of atrocities) rules, 1995, (hereinafter in short as sc/st (p.a) rules). according to him, these rules enables the defacto complainant to make such a request and it also empowers the district magistrate/district collector to make such appointment. in support of his submissions, the learned counsel would also cite the decision of a learned single judge of this court rendered in dhamayanthi vs. muruganantham and others, [2011(2) mlj (crl)22]..6. on the other hand, the learned additional public prosecutor would submit that the prosecution is being conducted by a special public prosecutor, whose competency has not been disputed. in such circumstances, the appointment sought for does not arises.7. act no.33 of 1989, namely, the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989 has been enacted to prevent atrocities against members of scheduled caste and scheduled tribe communities. the act is intended to provide special courts for the quick trial of the offences under the act and for relief and rehabilitation to the victims of such offences.8. in state of m.p. vs. ram kishna balothia, [1995(3)scc22, the hon'ble apex court explaining the stringent measures provided in the act observed as under:- the offences which are enumerated under section 3 are offences which, to say the least denigrate members of scheduled castes and scheduled tribes in the eyes of society and prevent them from leading a life of dignity and self-respect. such offences are committed to humiliate and subjugate members of scheduled castes and scheduled tribes with a view to keeping them in a state of servitude. these offences constitute a separate class and cannot be compared with offences under the penal code. 9. section 3 of the act lists out offences committed as against the members of scheduled caste and scheduled tribe communities. these offences are mainly based on the inhuman treatment to which members of these communities are subjected to.10. the said offences are to be tried by a 'special court.' [see: section 2(d)].. it is for speedy trial of the offences, in every district, a special court is constituted. a court of sessions shall be notified as special court under the act by the government with the concurrence of the chief justice of the high court.(see: section 14).11. though it is a special court it is also a sessions court.[see: gangula ashok vs. state of andhra pradesh (2000 cri.lj819].. thus, a special court under the act cannot straight away take cognizance of the commission of the offences complained of. the investigating officer has to file the final report before the jurisdiction magistrate. after complying the formalities under section 207 cr.p.c, the learned magistrate has to commit the case to the special court. [see: section 209 cr.p.c) the special judge shall follow the procedure being followed in conducting trial in sessions cases.12. according to section 225 cr.p.c., in the trial before a court of sessions, the prosecution case has to be conducted by the public prosecutor.13. but, under sc/st(pa) act appointment of a special public prosecutor to conduct prosecution in the said special court is envisaged under section 15. section 15 runs as under:- 15. special public prosecutor:- for every special court, the state government shall, by notification in the official gazette, specify a public prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a special public prosecutor for the purpose of conducting cases in that court. 14. thus, it is seen that under section 15 of the act, two categories of law officers are contemplated. one public prosecutor and the second one is advocate of seven years standing at the bar. thus, the existing public prosecutor or an advocate with requisite bar experience, could be appointed as a special public prosecutor.15. the general law of crimes are codified in the indian penal code,1860. this is the substantive penal law of india. as per section 4(1) of the criminal procedure code,1973 the said offences are to be investigated, enquired into, tried and otherwise dealt with under the 1973 code. however, as per its section 4(2), offences prescribed under other enactments have to be dealt with as provided in the other enactments. only in the absence of such provisions in the other enactments, the provisions of criminal procedure code will apply. thus, it is seen that section 4(2) incorporates the principle that special will prevail over general unless otherwise stated. thus, investigation, inquiry, prosecution and trial of offences under the sc/st (pa) act shall be as prescribed under the act and the rules framed thereunder. but, only in the absence of such provisions to meet a contingency not provided either in sc/st (pa) act and the rules framed thereunder, the provisions of criminal procedure code will apply.16. section 24 of the criminal procedure code envisages appointment of public prosecutor to conduct prosecution in a trial before the court of sessions. as per section 24(8) cr.p.c., an advocate with 10 years standing at the bar could be appointed a special public prosecutor. however, as per section 15 of sc/st (pa) act, besides the public prosecutor appointed under section 24(7) cr.p.c. which requires only 7 years standing at the bar, to be appointed as a special public prosecutor, an advocate with seven years bar experience can also be appointed as a special public prosecutor to conduct the prosecution before the special court under sc/st (pa) act.17. as per section 301(2) of cr.p.c. with the leave of the court, even a private person/advocate can be appointed to assist the public prosecutor. he can also submit written arguments after the conclusion of the evidence. under section 302 cr.p.c., in the magistrate's courts, even a private person can be permitted to conduct the prosecution.18. as already stated sc/st (pa) act is a special act enacted to view seriously the atrocities committed on the members of these downtrodden communities. the objective of the act was demonstrated by including sections 20 and 21 in the act. they runs as under:- 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.21. duty of government to ensure effective implementation of the act:-(1) subject to such rules as the central government may make in this behalf, the state government shall take such measures as may be necessary for the effective implementation of this act. 19. further, section 23(1) of the sc/st (pa) act empowers the central government to make rules for carrying out the purposes of the act. in pursuance of this power, the central government framed scheduled castes and scheduled tribes (prevention of atrocities) rules, 1995. noticing rule 4 is necessary for our purpose. the said rules runs as under:- 4. supervision of prosecution and submission of report:(1) the state government on the recommendation of the district magistrate shall prepare for each district a panel of such member of eminent senior advocates who have been in practice for not less than seven years, as it may deem necessary for conducting cases in the special court. similarly, in consultation with the director of prosecution/in-charge of the prosecution, a panel of such number of public prosecutors as it may deem necessary for conducting cases in the special court, shall also be specified. both these panels shall be notified in the official gazette of the state and shall remain in force for a period of three years. (2) the district magistrate and the director of prosecution/in-charge of the prosecution shall review at least twice a calendar year, in the months of january and july, the performance of special public prosecutors so specified or appointed and submit a report to the state government. (3) if the state government is satisfied or has reason to believe that a special public prosecutor so appointed or specified has not conducted the case to the best of his ability and with due care and caution, his name may be, for reasons to be recorded in writing, denotified. (4) the district magistrate and the officer-in-charge of the prosecution at the district level, shall review the position of cases registered under the act and submit a monthly report on or before 20th day of each subsequent month to the director of prosecution and the state government. this report shall specify the actions taken/proposed to be taken in respect of investigation and prosecution of each case. (5) notwithstanding anything contained in sub-rule(1) the district magistrate or the sub-divisional magistrate may, if deem necessary or if so desired by the victims of atrocity engage an eminent senior advocate for conducting cases in the special court on such payment of fee as he may consider appropriate. (6) payment of fee to the special public prosecutor shall be fixed by the state government on a scale higher than the other panel advocates to the state. (emphasis supplied by me) 20. as already stated as per section 15 of the sc/st (pa) act , the existing public prosecutor can be appointed as special public prosecutor. further, an advocate with seven years bar experience can be appointed as special public prosecutor from a panel of advocates drawn as per rule 4(1). but, these appointments have to be made by the state government by a notification in the official gazette.21. rule 4(5) is independent of appointments envisaged in section 15 and rule 4(1). rule 4(5) envisages that if the district magistrate,(district collector) or the sub divisional magistrate,(revenue divisional officer) deem it necessary or the victim of the atrocity desires an eminent senior advocate is required to be engaged to conduct the prosecution case in the special court, then the district magistrate shall engage such an advocate. he shall be paid appropriate fee by the government.22. rule 4(5) was considered by a division bench of the rajasthan high court in smt.satki devi & anr etc., vs. tikam singh and ors.(2006 cri.l.j.4721).23. the division bench set aside the order of a learned single judge setting aside the appointment of an advocate at the instance of a vicim of atrocity under rule 4(5). the division bench critically examined rule 4(5) and observed as under:- 16. dwelling upon the scope of rule 4(5) of the rules the learned single judge held that the rules does not relate to section 15. it operates to achieve the objectives of various clauses of section 21(2) of the act in the matter of effective implementation of the act. under rule 4(5), an eminent senior advocate can be 'engaged' by the district magistrate or sub divisional magistrate, such 'engaged' lawyer can only aid or assist the special public prosecutor but in any case, he cannot prosecute. if sub-rule (5) is read as proviso to section 15 of the act, it would disturb the structure of the act. if the rule goes beyond what the act contemplates, it must yield to the act. vires of sub-rule (5) need not be challenged as it is relatable to section 21 of the act. a non-obstante clause can operate only to the extent it is intended to be, and from a bare reference to sub-rule(5) it is clear that rule intends to facilitate engagement of a counsel if consider necessary by the district magistrate or sub divisional magistrate or decide by the complainant alongside the special public prosecutor. such engagement is not intended to be(over and above) the power of the state government to specify or appoint special public prosecutor under section 15 of the act. if the non-obstante clause in sub-rule (5) is read as an independent provision over and above the enactment, the rule to that extent would be invalid and in operative. the prosecution being essentially by the state and prosecutor being appointed by the state, an executive magistrate cannot have an independent power to appoint a prosecutor. sub-rule (5) does not refer to minimum length of practice as an advocate unlike section 15 of the act or section 24 of the code for appointment as a special public prosecutor. the omission regarding minimum length of service and the use of the term engagement in place of appointment cannot be ignored as insignificant. if the advocate appointed under sub-rule(5) on the application of the victim is treated as prosecutor, it would lead to an anomalous position as it would permit the victim to become prosecutor. advocate so appointed can conduct the case to the extent his engagement would permit; but he cannot prosecute. 18. we are afraid, the learned single judge over looked the fact that the act is a special statute enacted among other things to provide for special courts for trial of offences of atrocities against members of the scheduled caste and scheduled tribes. it is true that in terms of section 4(2) of the code, all offences under any law other than the indian penal code including special law are to be investigated, inquired into, tried and other wise dealt with according to the same provisions i.e., provisions contained in the code, but that is subject to any special enactment for the time being in force regulating the manner of investigation, enquiry or trial. the provisions regarding appointment of public prosecutor are contained in section 24 of the code and those relating to trial by public prosecutor in the court of session and contained in sections 225 and 301 of the code. the provisions relating to appointment of special public prosecutor under section 15 or engagement of an eminent senior advocate under rule 4(5) are to be read as supplemental to the provisions of the code. it is pertinent to mention here that appointment of public prosecutor or special public prosecutor  whether under section 24 of the code or section 15 of the act - is for conducting cases in the court of session or special court, as the case may be. likewise, the engagement of eminent senior advocate under rule 4(5) of the rules is also for conducting cases in the special court. we find no justification for taking the view that an advocate engaged under rule 4(5) can only aid or assist special public prosecutor and submit written argument at the end of trial with permission of the court, but he cannot prosecute.19. on a conjoined reading of section 15 of the act and sub rules (1) and (5) of rule 4 of the rules, it would appear that under section 15, the state government may specify the public prosecutor or make a fresh appointment of an advocate who has been practising as an advocate for not less than seven years as special public prosecutor. under sub-rule 1 of rule 4 the state government is required to prepare, on the recommendation of the district magistrate, a panel of eminent senior advocates who have put in practice for not less than 7 years. another panel of public prosecutors specified in consultation with the director of prosecution/in-charge of prosecution is also required to be prepared. these panels shall remain in force for a period of three years.20. before proceeding further, we may further analyse rule 4(1). on a close reading, it would appear that while the first part contemplates empanelment of 'advocates' having not less than 7 years practice, the second part refers to panel of 'public prosecutors'. section 15, it is to be kept in mind, also refers to 'specifying' a public prosecutor and 'appointing' an advocate. the only difference is that while rule 4(1) provides for 'empanelment'. section 15 provides for specifying the particular public prosecutor or appointing a particular advocate [apparently from the panel prepared under rule 4(1)]. for the particular special court.21. sub-rule (5) contains a non-obstante clause overriding the provisions of sub-rule(1). thereunder, the district magistrate or sub divisional magistrate may on application of the victim of atrocity or on his own motion, if deemed necessary, engage an eminent senior advocate to conduct the case. while the panels contemplated in sub rule(1) of the rule 4 and standing panels and the advocates/public prosecutors borne on these panels have a tenure of three years subject to review of their performance and ability- as provided in sub rules(2), (3) and (4) of rule 4, and they may appear in the case assigned to them. the engagement under sub rule (5) of rule 4 is special appointment for the particular case. this is evident from the fact that such appointment is on payment of special fee as considered appropriate, which may be different from the fee payable to an advocate/public prosecutor appointed or specified under section 15 of the act.22. much emphasis was laid on the use of a different terminology viz., engage' in rule 4(5) as distinct from appoint or specify in section 15. it was submitted that the trial can be conducted only by a special public prosecutor as provided in section 15 of the act. sub rule(5) does not refer to conducting trial by a special public prosecutor. conducting case by an 'eminent senior advocate' as provided in sub rule(5) therefore, would not tantamount to conducting case by a special public prosecutor.23. it is true that sub rule (5) employes a different term viz., engage different from appoint or specify used in section 15. but we do not think, the phraseology has any bearing on the extent of one's brief. whether he is appointed, specified or engaged  he would nonetheless be conducting the case in special court. we are consdious of the fact that in the scheme of things provided in the code, the trial in the court of session is conducted only by a public prosecutor or special public prosecutor section 15 of the act also provides for conducting cases in special court by a special public prosecutor. no mention, on the other hand is made of special public prosecutor in sub rule(5). the reason however, is not far to seek. section 15 contemplates 'specifying' a public prosecutor whether appointed under section 24 of the code or empanelled under sub-rule (1) of rule 4  or appointing an advocate as special public prosecutor for the purpose of conducting cases in the special court. these appointments apparently are made from panels of prosecutors and advocates. it may so happen that the victim of atrocity in a particular case may not have faith in the prosecutors/advocate specified or appointed under section 15. he may like to have the case conducted by an advocate of his choice. it is in order to inspire confidence of the victim of atrocity in the administration of justice that a special provision has been made for engagement of an eminent senior advocate to conduct the case. that is why a different term 'engaged' has been used in rule 4(5) in contradistinction to 'appoint' or 'specify' in section 15. 'engaged' means that he has been engaged for a particular case, unlike appointment/specifying of an advocate/ prosecutor from the panel. it is to be kept in mind that sub rule (5) contains a non-obstante clause overriding the provisions of rube rule(1) which means that the appointment under rule 4(5) can be made of a person who is not in the panel. the panels, as seen above, comprise of advocates/public prosecutors of the choice of the government. it is also to be kept in mind that the act is a special statute enacted to provide relief to the victims of atrocity in the matter of trial of offences covered by the act and rule 4(5) confers a right upon victim of atrocity to have his case conducted by an advocate of his choice  so as to ensure that he has faith in the trial.28. the state no doubt is the prosecutor and the prosecution in all cases and trial in all cases is to be conducted in the court of session by public prosecutor or special public prosecutor, as the case may be, appointed by the government, but the sc & st act is a special statute which overrides any other law for the time being in force.29. we do not find any conflict between sub rule (5) and rule 4 and section 15 of the act. as indicated above whether the public prosecutor is specified or an advocate is appointed under section 15 of the act or an eminent senior advocate is engaged under rule 4(5), these appointments or engagements are for the purpose of conducting cases in special courts. the observation of the learned single judge that sub rule (5) of rule 4 is limited to implementing the act framed in the context of section 21(2)(iv) does not appear to be correct. we are conscious of the fact that sub rule (5) is part of the rule captioned as single 'supervision of prosecution and submission of report'  referred to in clause (iv) of sub section (2) of section 21. however on a combined reading of a rule, it is manifest that while sub rules(1) to (4) contain provisions regarding supervision of prosecutions through panel prepared under sub-rule(1) and review of the performance of the prosecutors borne on the panel, sub rule (5) is an independent provision with a non-obstante clause. rules are always framed for effective implementation of the act, but if sub rule(5) is given a restricted meaning and it is held that the authority of the advocate engaged by the district magistrate to conduct case is limited to assisting the public prosecutor as a second fiddle, it would frustrate the object of sub rule (5) as it would deny the victim of atrocity the facility to have his case conducted by an advocate of his choice.30. it is true that sub rule (5) does not laid down any qualification as to the minimum length of practice unlike section 15 or sub rule (1) of rule 4 but, apparently, framers of the rule did not want to put any restriction and the choice of the victims of atrocity subject to the embargo that the person should be an 'eminent senior advocate'  a term used in sub rule (1) of rule 4 as well. thus the advocate should be of choice of the victim of atrocity and also in the opinion of the district magistrate/sub divisional magistrate, an eminent senior advocate.".24. similarly, in dhamayanthi vs. muruganantham and others,[2011(2) mlj (crl)22]., a single judge of this court referring to the said rule 4(5) held as under:- as per the rule, the district magistrate is the competent authority to engage an advocate for conducting the cases in special courts on payment of fee. therefore it is just and appropriate to direct the district magistrate viz., the collector, namakkal district to appoint an advocate as desired by the victim for conducting the case pending before the principal and district and sessions judge, namakkal. 25. the language employed in rule 4(5) is plain, simple and admit of any difficulty or ambiguity in understanding it. unlike the general penal law of india or any other enactment providing prosecution, the sc/st (pa) act is a special act intended to put an end to untouchability, degradation of human being merely on account of their birth. that is how, as per section 18 of the act, even grant of pre-arrest bail has been ruled out for those who commits the offences prescribed under the act. added to that section 20 introduced a non-obstante clause and section 21 imposed a duty on the central government to frame rules for effective implementation of the act.26. in such circumstances, the golden rule of literal interpretation has to be adopted. there shall not be any addition or substraction to the language of the law employed in such plain rule.27. in view of the foregoings, whether the prosecution is being conducted by a senior public prosecutor or whether there was any allegation as against the prosecutor, when the victim of the atrocity wishes that an eminent senior advocate shall be engaged to conduct the prosecution case then the district magistrate has to engage such an advocate to conduct the prosecution in the special court. the district collector cannot avoid such a request of the victim of the atrocity.28. in the circumstances, in pursuance of the written representations of the petitioner dated 25.3.2103 and 2.8.2013, the district magistrate/the district collector, tiruppur district, tiruppur is directed to engage mr.b.mohan, senior advocate to conduct the prosecution in the special case in s.c.no.1 of 2013 pending before the special judge(principal sessions judge) under sc/st(pa) act, tiruppur within 10 days from the date of receipt of a copy of this order. accordingly, the criminal original petition is disposed of. consequently, connected m.p. is closed. 25.09.2013 index : yes / no internet : yes / no rrg to 1.the special judge under the sc/st(pa) act / principal sessions judge, tiruppur district, tiruppur. 2.the district collector, tiruppur district. tiruppur. 3.the deputy superintendent of police, kangeyam, tiruppur district. 4.the inspector of police, vellakovil police station. tiruppur distict, tiruppur. 5.the public prosecutor, high court, madras. p.devadass, j.rrg pre delivery order in crl.o.p.no.22043 of 2013 25.09.2013
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

25. 09.2013 CORAM: THE HON'BLE MR.JUSTICE P.DEVADASS Crl.O.P.No.22043 of 2013 and M.P.No.1 of 2013 Somalaiappan ... Petitioner Vs 1.Palanisamy 2.Kanthasamy 3.Dhandapani 4.Thangavel 5.Eswaramoorthy 6.Shanmugam 7.Stalin Murugesan 8.Ponnusamy 9.Sadakadai Subramani @ Balasubramaniam 10.Karikalan 11.Govinthammal 12.State rep. by Inspector of Police, Vellakoil Police Station. ... Respondents Prayer: Petition filed under Section 482 of the Criminal Procedure Code to direct the District Magistrate/the District Collector, Tiruppur District, Tiruppur to appoint Mr.B.Mohan, Senior Advocate as desired by the petitioner/victim for conducting the prosecution in S.C.No.1 of 2013 on the file of the Special Judge(Principal Sessions Judge), Tiruppur. For Petitioner : Mr.M.Guruprasad For Respondents : Mr.C.Emalias for R-12 Addl. Public Prosecutor ORDER

Somalaiappan, the defacto complainant in the special case in S.C.No.1 of 2013, pending before the Court of the learned Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act(Principal Sessions Judge), Tiruppur, came forward with this petition under Section 482 Cr.P.C. for issuance of direction to the District Magistrate/the District Collector, Tiruppur District, Tiruppur to appoint Mr.B.Mohan, a Senior Advocate to conduct prosecution in the said case.

2. On the complaint of the petitioner, a case in Crime No.2602 of 2010 for offences under Sections 147, 323 IPC and 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (shortly hereinafter SC/ST(PA) Act) has been registered by the 12th respondent, namely, the Inspector of Police, Vellakovil Police Station. The Deputy Superintendent of Police, Kangeyam Sub-Division, Kangeyam, Tiruppur District, investigated the case. He filed the final report under Section 173(2) Cr.P.C. for offences under Section 147, 294(b), 323 r/w 149 IPC and 3(i)(x)(xiv) of S.C/S.T.(P.A) Act, as against respondents 1 to 11 before the committal Magistrate.

3. The learned Magistrate took cognizance thereon in a Preliminary Register Case and committed the case to the Court of Special Judge(Principal Sessions Judge) under SC/ST (P.A) Act, Tiruppur. Now, respondents 1 to 11 are being prosecuted before the said Judge in S.C.No.1 of 2013. The prosecution is being conducted by the Special Public Prosecutor.

4. Petitioner presented a petition to the District Collector, Tiruppur District to engage Mr.B.Mohan, an Advocate having long standing Bar experience and who had conducted large number of criminal cases including cases under SC & ST(PA) Act, to conduct the prosecution. However, the District Magistrate has not taken any action.

5. The learned counsel for the petitioner would refer to Rule 4(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, (hereinafter in short as SC/ST (P.A) Rules). According to him, these Rules enables the defacto complainant to make such a request and it also empowers the District Magistrate/District Collector to make such appointment. In support of his submissions, the learned counsel would also cite the decision of a learned Single Judge of this Court rendered in DHAMAYANTHI Vs. MURUGANANTHAM AND OTHERS, [2011(2) MLJ (Crl)22]..

6. On the other hand, the learned Additional Public Prosecutor would submit that the prosecution is being conducted by a Special Public Prosecutor, whose competency has not been disputed. In such circumstances, the appointment sought for does not arises.

7. Act No.33 of 1989, namely, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been enacted to prevent atrocities against members of Scheduled Caste and Scheduled Tribe communities. The Act is intended to provide Special Courts for the quick trial of the offences under the Act and for relief and rehabilitation to the victims of such offences.

8. In STATE OF M.P. Vs. RAM KISHNA BALOTHIA, [1995(3)SCC22, the Hon'ble Apex Court explaining the stringent measures provided in the Act observed as under:- The offences which are enumerated under Section 3 are offences which, to say the least denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society and prevent them from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate class and cannot be compared with offences under the Penal Code. 9. Section 3 of the Act lists out offences committed as against the members of Scheduled Caste and Scheduled Tribe communities. These offences are mainly based on the inhuman treatment to which members of these communities are subjected to.

10. The said offences are to be tried by a 'Special Court.' [See: Section 2(d)].. It is for speedy trial of the offences, in every District, a Special Court is constituted. A Court of Sessions shall be notified as Special Court under the Act by the Government with the concurrence of the Chief Justice of the High Court.(See: Section 14).

11. Though it is a Special Court it is also a Sessions Court.[See: GANGULA ASHOK Vs. STATE OF ANDHRA PRADESH (2000 Cri.LJ819].. Thus, a Special Court under the Act cannot straight away take cognizance of the commission of the offences complained of. The Investigating Officer has to file the final report before the jurisdiction Magistrate. After complying the formalities under Section 207 Cr.P.C, the learned Magistrate has to commit the case to the Special Court. [See: Section 209 Cr.P.C) The Special Judge shall follow the procedure being followed in conducting trial in sessions cases.

12. According to Section 225 Cr.P.C., in the trial before a Court of Sessions, the prosecution case has to be conducted by the Public Prosecutor.

13. But, under SC/ST(PA) Act appointment of a Special Public Prosecutor to conduct prosecution in the said Special Court is envisaged under Section 15. Section 15 runs as under:- 15. Special Public Prosecutor:- For every Special Court, the State Government shall, by notification in the Official Gazette, specify a Public Prosecutor or appoint an Advocate who has been in practice as an Advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court. 14. Thus, it is seen that under Section 15 of the Act, two categories of law officers are contemplated. One Public Prosecutor and the second one is advocate of seven years standing at the Bar. Thus, the existing Public Prosecutor or an Advocate with requisite Bar experience, could be appointed as a Special Public Prosecutor.

15. The general law of crimes are codified in the Indian Penal Code,1860. This is the substantive Penal Law of India. As per Section 4(1) of the Criminal Procedure Code,1973 the said offences are to be investigated, enquired into, tried and otherwise dealt with under the 1973 Code. However, as per its Section 4(2), offences prescribed under other enactments have to be dealt with as provided in the other enactments. Only in the absence of such provisions in the other enactments, the provisions of Criminal Procedure Code will apply. Thus, it is seen that Section 4(2) incorporates the principle that special will prevail over general unless otherwise stated. Thus, investigation, inquiry, prosecution and trial of offences under the SC/ST (PA) Act shall be as prescribed under the Act and the rules framed thereunder. But, only in the absence of such provisions to meet a contingency not provided either in SC/ST (PA) Act and the Rules framed thereunder, the provisions of Criminal Procedure Code will apply.

16. Section 24 of the Criminal Procedure Code envisages appointment of Public Prosecutor to conduct prosecution in a trial before the Court of Sessions. As per Section 24(8) Cr.P.C., an advocate with 10 years standing at the Bar could be appointed a Special Public Prosecutor. However, as per Section 15 of SC/ST (PA) Act, besides the Public Prosecutor appointed under Section 24(7) Cr.P.C. which requires only 7 years standing at the Bar, to be appointed as a Special Public Prosecutor, an Advocate with seven years Bar experience can also be appointed as a Special Public Prosecutor to conduct the prosecution before the Special Court under SC/ST (PA) Act.

17. As per Section 301(2) of Cr.P.C. with the leave of the Court, even a private person/advocate can be appointed to assist the Public Prosecutor. He can also submit written arguments after the conclusion of the evidence. Under Section 302 Cr.P.C., in the Magistrate's Courts, even a private person can be permitted to conduct the prosecution.

18. As already stated SC/ST (PA) Act is a Special Act enacted to view seriously the atrocities committed on the members of these downtrodden communities. The objective of the Act was demonstrated by including Sections 20 and 21 in the Act. They runs as under:- 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.

21. Duty of Government to ensure effective implementation of the Act:-(1) Subject to such rules as the Central Government may make in this behalf, the State Government shall take such measures as may be necessary for the effective implementation of this Act. 19. Further, Section 23(1) of the SC/ST (PA) Act empowers the Central Government to make rules for carrying out the purposes of the Act. In pursuance of this power, the Central Government framed Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. Noticing Rule 4 is necessary for our purpose. The said rules runs as under:- 4. Supervision of Prosecution and Submission of Report:(1) The State Government on the recommendation of the District Magistrate shall prepare for each District a panel of such member of eminent Senior Advocates who have been in practice for not less than seven years, as it may deem necessary for conducting cases in the Special Court. Similarly, in consultation with the Director of Prosecution/in-charge of the prosecution, a panel of such number of Public Prosecutors as it may deem necessary for conducting cases in the Special Court, shall also be specified. Both these panels shall be notified in the Official Gazette of the State and shall remain in force for a period of three years. (2) The District Magistrate and the Director of Prosecution/in-charge of the prosecution shall review at least twice a calendar year, in the months of January and July, the performance of Special Public Prosecutors so specified or appointed and submit a report to the State Government. (3) If the State government is satisfied or has reason to believe that a Special Public Prosecutor so appointed or specified has not conducted the case to the best of his ability and with due care and caution, his name may be, for reasons to be recorded in writing, denotified. (4) The District Magistrate and the officer-in-charge of the prosecution at the District level, shall review the position of cases registered under the Act and submit a monthly report on or before 20th day of each subsequent month to the Director of Prosecution and the State Government. This report shall specify the actions taken/proposed to be taken in respect of investigation and prosecution of each case. (5) Notwithstanding anything contained in Sub-rule(1) the District Magistrate or the Sub-Divisional Magistrate may, if deem necessary or if so desired by the victims of atrocity engage an eminent Senior Advocate for conducting cases in the Special Court on such payment of fee as he may consider appropriate. (6) Payment of fee to the Special Public Prosecutor shall be fixed by the State Government on a scale higher than the other panel advocates to the State. (emphasis supplied by me) 20. As already stated as per Section 15 of the SC/ST (PA) Act , the existing Public Prosecutor can be appointed as Special Public Prosecutor. Further, an advocate with seven years Bar experience can be appointed as Special Public Prosecutor from a panel of Advocates drawn as per Rule 4(1). But, these appointments have to be made by the State Government by a notification in the Official Gazette.

21. Rule 4(5) is independent of appointments envisaged in Section 15 and Rule 4(1). Rule 4(5) envisages that if the District Magistrate,(District Collector) or the Sub Divisional Magistrate,(Revenue Divisional Officer) deem it necessary or the victim of the atrocity desires an eminent Senior Advocate is required to be engaged to conduct the prosecution case in the Special Court, then the District Magistrate shall engage such an Advocate. He shall be paid appropriate fee by the Government.

22. Rule 4(5) was considered by a Division Bench of the Rajasthan High Court in SMT.SATKI DEVI & ANR ETC., Vs. TIKAM SINGH AND ORS.(2006 CRI.L.J.

4721).

23. The Division Bench set aside the order of a learned Single Judge setting aside the appointment of an Advocate at the instance of a vicim of atrocity under Rule 4(5). The Division Bench critically examined Rule 4(5) and observed as under:- 16. Dwelling upon the scope of Rule 4(5) of the Rules the learned Single Judge held that the rules does not relate to Section 15. It operates to achieve the objectives of various clauses of Section 21(2) of the Act in the matter of effective implementation of the Act. Under Rule 4(5), an eminent Senior Advocate can be 'engaged' by the District Magistrate or Sub Divisional Magistrate, such 'engaged' lawyer can only aid or assist the Special Public Prosecutor but in any case, he cannot prosecute. If sub-rule (5) is read as proviso to Section 15 of the Act, it would disturb the structure of the Act. If the rule goes beyond what the Act contemplates, it must yield to the Act. Vires of sub-rule (5) need not be challenged as it is relatable to Section 21 of the Act. A non-obstante clause can operate only to the extent it is intended to be, and from a bare reference to sub-rule(5) it is clear that rule intends to facilitate engagement of a counsel if consider necessary by the District Magistrate or Sub Divisional Magistrate or decide by the complainant alongside the Special Public Prosecutor. Such engagement is not intended to be(over and above) the power of the State Government to specify or appoint Special Public Prosecutor under Section 15 of the Act. If the non-obstante clause in sub-rule (5) is read as an independent provision over and above the enactment, the rule to that extent would be invalid and in operative. The prosecution being essentially by the State and Prosecutor being appointed by the State, an Executive Magistrate cannot have an independent power to appoint a prosecutor. Sub-rule (5) does not refer to minimum length of practice as an Advocate unlike Section 15 of the Act or Section 24 of the Code for appointment as a Special Public Prosecutor. The omission regarding minimum length of service and the use of the term engagement in place of appointment cannot be ignored as insignificant. If the Advocate appointed under sub-rule(5) on the application of the victim is treated as prosecutor, it would lead to an anomalous position as it would permit the victim to become prosecutor. Advocate so appointed can conduct the case to the extent his engagement would permit; but he cannot prosecute. 18. We are afraid, the learned single Judge over looked the fact that the Act is a special statute enacted among other things to provide for special Courts for trial of offences of atrocities against members of the Scheduled Caste and Scheduled Tribes. It is true that in terms of Section 4(2) of the Code, all offences under any law other than the Indian Penal Code including special law are to be investigated, inquired into, tried and other wise dealt with according to the same provisions i.e., provisions contained in the Code, but that is subject to any special enactment for the time being in force regulating the manner of investigation, enquiry or trial. The provisions regarding appointment of Public Prosecutor are contained in Section 24 of the Code and those relating to trial by public prosecutor in the Court of Session and contained in Sections 225 and 301 of the Code. The provisions relating to appointment of special public prosecutor under Section 15 or engagement of an eminent senior advocate under Rule 4(5) are to be read as supplemental to the provisions of the Code. It is pertinent to mention here that appointment of public prosecutor or special public prosecutor  whether under Section 24 of the Code or Section 15 of the Act - is for conducting cases in the Court of Session or Special Court, as the case may be. Likewise, the engagement of eminent senior advocate under Rule 4(5) of the Rules is also for conducting cases in the special Court. We find no justification for taking the view that an advocate engaged under Rule 4(5) can only aid or assist special public prosecutor and submit written argument at the end of trial with permission of the Court, but he cannot prosecute.

19. On a conjoined reading of Section 15 of the Act and sub Rules (1) and (5) of Rule 4 of the Rules, it would appear that under Section 15, the State Government may specify the public prosecutor or make a fresh appointment of an advocate who has been practising as an advocate for not less than seven years as special public prosecutor. Under sub-rule 1 of rule 4 the State Government is required to prepare, on the recommendation of the District Magistrate, a panel of eminent senior advocates who have put in practice for not less than 7 years. Another panel of public prosecutors specified in consultation with the Director of Prosecution/in-charge of prosecution is also required to be prepared. These panels shall remain in force for a period of three years.

20. Before proceeding further, we may further analyse Rule 4(1). On a close reading, it would appear that while the first part contemplates empanelment of 'advocates' having not less than 7 years practice, the second part refers to panel of 'public prosecutors'. Section 15, it is to be kept in mind, also refers to 'specifying' a public prosecutor and 'appointing' an advocate. The only difference is that while Rule 4(1) provides for 'empanelment'. Section 15 provides for specifying the particular public prosecutor or appointing a particular advocate [apparently from the panel prepared under Rule 4(1)]. for the particular Special Court.

21. Sub-Rule (5) contains a non-obstante clause overriding the provisions of sub-rule(1). Thereunder, the District Magistrate or Sub Divisional Magistrate may on application of the victim of atrocity or on his own motion, if deemed necessary, engage an eminent senior advocate to conduct the case. While the panels contemplated in sub rule(1) of the Rule 4 and standing panels and the Advocates/Public Prosecutors borne on these panels have a tenure of three years subject to review of their performance and ability- as provided in sub rules(2), (3) and (4) of Rule 4, and they may appear in the case assigned to them. The engagement under sub rule (5) of Rule 4 is special appointment for the particular case. This is evident from the fact that such appointment is on payment of special fee as considered appropriate, which may be different from the fee payable to an advocate/public prosecutor appointed or specified under Section 15 of the Act.

22. Much emphasis was laid on the use of a different terminology viz., engage' in Rule 4(5) as distinct from appoint or specify in Section 15. It was submitted that the trial can be conducted only by a special public prosecutor as provided in Section 15 of the Act. Sub rule(5) does not refer to conducting trial by a special public prosecutor. Conducting case by an 'eminent senior advocate' as provided in sub rule(5) therefore, would not tantamount to conducting case by a special public prosecutor.

23. It is true that sub rule (5) employes a different term viz., engage different from appoint or specify used in Section 15. But we do not think, the phraseology has any bearing on the extent of one's brief. Whether he is appointed, specified or engaged  he would nonetheless be conducting the case in special Court. We are consdious of the fact that in the scheme of things provided in the Code, the trial in the Court of Session is conducted only by a Public Prosecutor or Special Public Prosecutor Section 15 of the Act also provides for conducting cases in Special Court by a Special Public Prosecutor. No mention, on the other hand is made of Special Public Prosecutor in sub rule(5). The reason however, is not far to seek. Section 15 contemplates 'specifying' a Public Prosecutor whether appointed under Section 24 of the Code or empanelled under sub-rule (1) of Rule 4  or appointing an advocate as Special Public Prosecutor for the purpose of conducting cases in the Special Court. These appointments apparently are made from panels of prosecutors and Advocates. It may so happen that the victim of atrocity in a particular case may not have faith in the prosecutors/advocate specified or appointed under Section 15. He may like to have the case conducted by an Advocate of his choice. It is in order to inspire confidence of the victim of atrocity in the administration of justice that a special provision has been made for engagement of an eminent senior advocate to conduct the case. That is why a different term 'engaged' has been used in Rule 4(5) in contradistinction to 'appoint' or 'specify' in Section 15. 'Engaged' means that he has been engaged for a particular case, unlike appointment/specifying of an advocate/ prosecutor from the panel. It is to be kept in mind that sub rule (5) contains a non-obstante clause overriding the provisions of rube rule(1) which means that the appointment under Rule 4(5) can be made of a person who is not in the panel. The panels, as seen above, comprise of advocates/Public Prosecutors of the choice of the Government. It is also to be kept in mind that the Act is a special statute enacted to provide relief to the victims of atrocity in the matter of trial of offences covered by the Act and Rule 4(5) confers a right upon victim of atrocity to have his case conducted by an advocate of his choice  so as to ensure that he has faith in the trial.

28. The State no doubt is the prosecutor and the prosecution in all cases and trial in all cases is to be conducted in the Court of Session by Public Prosecutor or Special Public Prosecutor, as the case may be, appointed by the Government, but the SC & ST Act is a special statute which overrides any other law for the time being in force.

29. We do not find any conflict between sub rule (5) and Rule 4 and Section 15 of the Act. As indicated above whether the Public Prosecutor is specified or an advocate is appointed under Section 15 of the Act or an eminent senior advocate is engaged under Rule 4(5), these appointments or engagements are for the purpose of conducting cases in Special Courts. The observation of the learned Single Judge that sub rule (5) of Rule 4 is limited to implementing the Act framed in the context of Section 21(2)(iv) does not appear to be correct. We are conscious of the fact that sub rule (5) is part of the Rule captioned as single 'supervision of prosecution and submission of report'  referred to in clause (iv) of sub section (2) of Section 21. However on a combined reading of a rule, it is manifest that while sub rules(1) to (4) contain provisions regarding supervision of prosecutions through panel prepared under sub-rule(1) and review of the performance of the prosecutors borne on the panel, sub rule (5) is an independent provision with a non-obstante clause. Rules are always framed for effective implementation of the Act, but if sub rule(5) is given a restricted meaning and it is held that the authority of the advocate engaged by the District Magistrate to conduct case is limited to assisting the Public Prosecutor as a second fiddle, it would frustrate the object of sub rule (5) as it would deny the victim of atrocity the facility to have his case conducted by an advocate of his choice.

30. It is true that sub rule (5) does not laid down any qualification as to the minimum length of practice unlike Section 15 or sub rule (1) of Rule 4 but, apparently, framers of the Rule did not want to put any restriction and the choice of the victims of atrocity subject to the embargo that the person should be an 'eminent senior advocate'  a term used in sub rule (1) of Rule 4 as well. Thus the advocate should be of choice of the victim of atrocity and also in the opinion of the District Magistrate/sub Divisional Magistrate, an eminent senior advocate.".

24. Similarly, in DHAMAYANTHI Vs. MURUGANANTHAM AND OTHERS,[2011(2) MLJ (Crl)22]., a Single Judge of this Court referring to the said Rule 4(5) held as under:- As per the rule, the District Magistrate is the competent authority to engage an advocate for conducting the cases in Special Courts on payment of fee. Therefore it is just and appropriate to direct the District Magistrate viz., the Collector, Namakkal District to appoint an Advocate as desired by the victim for conducting the case pending before the Principal and District and Sessions Judge, Namakkal. 25. The language employed in Rule 4(5) is plain, simple and admit of any difficulty or ambiguity in understanding it. Unlike the General Penal Law of India or any other enactment providing prosecution, the SC/ST (PA) Act is a special Act intended to put an end to untouchability, degradation of human being merely on account of their birth. That is how, as per Section 18 of the Act, even grant of pre-arrest bail has been ruled out for those who commits the offences prescribed under the Act. Added to that Section 20 introduced a non-obstante clause and Section 21 imposed a duty on the Central Government to frame rules for effective implementation of the Act.

26. In such circumstances, the golden rule of literal interpretation has to be adopted. There shall not be any addition or substraction to the language of the law employed in such plain rule.

27. In view of the foregoings, whether the prosecution is being conducted by a Senior Public Prosecutor or whether there was any allegation as against the Prosecutor, when the victim of the atrocity wishes that an eminent Senior Advocate shall be engaged to conduct the prosecution case then the District Magistrate has to engage such an Advocate to conduct the prosecution in the Special Court. The District Collector cannot avoid such a request of the victim of the atrocity.

28. In the circumstances, in pursuance of the written representations of the petitioner dated 25.3.2103 and 2.8.2013, the District Magistrate/the District Collector, Tiruppur District, Tiruppur is directed to engage Mr.B.Mohan, Senior Advocate to conduct the prosecution in the special case in S.C.No.1 of 2013 pending before the Special Judge(Principal Sessions Judge) under SC/ST(PA) Act, Tiruppur within 10 days from the date of receipt of a copy of this order. Accordingly, the criminal original petition is disposed of. Consequently, connected M.P. is closed. 25.09.2013 Index : Yes / No Internet : Yes / No rrg To 1.The Special Judge under the SC/ST(PA) Act / Principal Sessions Judge, Tiruppur District, Tiruppur. 2.The District Collector, Tiruppur District. Tiruppur. 3.The Deputy Superintendent of Police, Kangeyam, Tiruppur District. 4.The Inspector of Police, Vellakovil Police Station. Tiruppur Distict, Tiruppur. 5.The Public Prosecutor, High Court, Madras. P.DEVADASS, J.

rrg PRE DELIVERY ORDER

IN Crl.O.P.No.22043 of 2013 25.09.2013