Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment

Judgment:

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			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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B.P. Das, J.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2002(I)OLR252',
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			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/535350/sessions-judge-cum-special-vs-state-orissa'
$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'State of M. P. v. Bhooraji<br>'
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
)
$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2002(I)OLR252',
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			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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Section 3 of the Act reads as follows :

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/535350/sessions-judge-cum-special-vs-state-orissa'
$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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			'circuit' => null
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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(a) for the prevention of and for coping with any offence under this Act, or

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.

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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
)
$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
)
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$cnt = (int) 48
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View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
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Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
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Section 4 of the Cr. P.C. reads thus :

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2002(I)OLR252',
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			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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			'circuit' => null
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/535350/sessions-judge-cum-special-vs-state-orissa'
$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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(2) 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.'

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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			'circuit' => null
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'State of M. P. v. Bhooraji<br>'
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'State of M. P. v. Bhooraji<br>'
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
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			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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'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.'

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
)
$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2002(I)OLR252',
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			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/535350/sessions-judge-cum-special-vs-state-orissa'
$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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			'circuit' => null
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.

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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'State of M. P. v. Bhooraji<br>'
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.

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			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
)
$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2002(I)OLR252',
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			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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			'circuit' => null
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/535350/sessions-judge-cum-special-vs-state-orissa'
$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'State of M. P. v. Bhooraji<br>'
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'

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			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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		'pubs' => '2002(I)OLR252',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
	)
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2002(I)OLR252',
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			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
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$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
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	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
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11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.

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	'title_for_layout' => 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535350',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
			'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
			'appellant' => 'Sessions Judge-cum-special Judge and ors.',
			'authreffered' => '',
			'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
			'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
			'caseanalysis' => null,
			'casesref' => 'State of M. P. v. Bhooraji;',
			'citingcases' => '',
			'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
			'counseldef' => 'Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2001-11-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'B.P. Das, J.',
			'judgement' => '<p style="text-align: justify;">B.P. Das, J.</p><p style="text-align: justify;">1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p style="text-align: justify;">'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p style="text-align: justify;">(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p style="text-align: justify;">The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p style="text-align: justify;">2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p style="text-align: justify;">3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p style="text-align: justify;">4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p style="text-align: justify;">Rules 7 of the Rules speaks as under :</p><p style="text-align: justify;">'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p style="text-align: justify;">(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p style="text-align: justify;">(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p style="text-align: justify;">Section 3 of the Act reads as follows :</p><p style="text-align: justify;">'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p style="text-align: justify;">(a) for the prevention of and for coping with any offence under this Act, or</p><p style="text-align: justify;">(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p style="text-align: justify;">(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p style="text-align: justify;">(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p style="text-align: justify;">A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p style="text-align: justify;">5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p style="text-align: justify;">Section 4 of the Cr. P.C. reads thus :</p><p style="text-align: justify;">'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p style="text-align: justify;">(2) 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.'</p><p style="text-align: justify;">So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p style="text-align: justify;">Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p style="text-align: justify;">'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p style="text-align: justify;">Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p style="text-align: justify;">Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p style="text-align: justify;">6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p style="text-align: justify;">7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p style="text-align: justify;">'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p style="text-align: justify;">Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p style="text-align: justify;">8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p style="text-align: justify;">9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p style="text-align: justify;">10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p style="text-align: justify;">'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p style="text-align: justify;">(a) ......</p><p style="text-align: justify;">(b) ......</p><p style="text-align: justify;">(c) ......</p><p style="text-align: justify;">(d) ......</p><p style="text-align: justify;">(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p style="text-align: justify;">Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p style="text-align: justify;">'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p style="text-align: justify;">In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p style="text-align: justify;">11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2002(I)OLR252',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'sessions-judge-cum-special-vs-state-orissa',
	'args' => array(
		(int) 0 => '535350',
		(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$title_for_layout = 'Sessions Judge Cum Special Judge and ors Vs State of Orissa - Citation 535350 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535350',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7',
		'appealno' => 'Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38',
		'appellant' => 'Sessions Judge-cum-special Judge and ors.',
		'authreffered' => '',
		'casename' => 'Sessions Judge-cum-special Judge and ors. Vs. State of Orissa',
		'casenote' => ' Criminal - Further Proceeding of Case - Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 34, 341, 323, 294 and 506 of Indian Penal Code, 1860 (IPC) - Accused were facing trial under Sections 341, 323, 294, 506 read with Section 34 of IPC and under Section 3 of Act before Special Judge - Filed application for dropping of proceeding on ground that further progress of cases is bad without committal proceeding in view of principle enunciated Apex Court in Gangula Ashok v. State of A.P. - Hence, present reference made by Special Court to present court for resolving the issue - Whether further progress in cases under Act, pending in Special Courts is bad without committal proceeding in view of the principle enunciated Gangula Ashok v. State of A.P.? -Held, as per decision of Apex Court in above referred case, Special Court cannot take cognizance of the offence - In other words, complaint or charge-sheet cannot straightaway be laid before the Special Courts under Act and only Court which can take cognizance is Court of S.D.J.M. - Sessions Court or Special Court assumes power only after committal of case - However, in case like at hand, where trial had already progressed to great extent, order of sending back the case to Court of S.D.J.M. for taking cognizance will be prejudicial to interest of accused person, who has already disclosed his defence, and prosecution witnesses have already been examined - In such circumstances, Special Judge directed to proceed further with the case and conclude the trial - Parties directed file applications before Special Judge indicating whether they would be prejudiced or not - Special Judge after hearing parties shall pass appropriate order in light of observations made above - Reference was answered accordingly - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  ') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. (2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995. 5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. 7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. ' Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. should be limited to the extreme exigency to avert 'a failure of justice'.Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.',
		'caseanalysis' => null,
		'casesref' => 'State of M. P. v. Bhooraji;',
		'citingcases' => '',
		'counselplain' => 'Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.',
		'counseldef' => 'Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2001-11-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'B.P. Das, J.',
		'judgement' => '<p>B.P. Das, J.</p><p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :</p><p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.</p><p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'</p><p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.</p><p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.</p><p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.</p><p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.</p><p>Rules 7 of the Rules speaks as under :</p><p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.</p><p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.</p><p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'</p><p>Section 3 of the Act reads as follows :</p><p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -</p><p>(a) for the prevention of and for coping with any offence under this Act, or</p><p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.</p><p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.</p><p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'</p><p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.</p><p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.</p><p>Section 4 of the Cr. P.C. reads thus :</p><p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.</p><p>(2) 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.'</p><p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.</p><p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :</p><p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'</p><p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :</p><p>'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.'</p><p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.</p><p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.</p><p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.</p><p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :</p><p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'</p><p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.</p><p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).</p><p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.</p><p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :</p><p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :</p><p>(a) ......</p><p>(b) ......</p><p>(c) ......</p><p>(d) ......</p><p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'</p><p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :</p><p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'</p><p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.</p><p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2002(I)OLR252',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'sessions-judge-cum-special-vs-state-orissa'
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$url = 'https://sooperkanoon.com/case/amp/535350/sessions-judge-cum-special-vs-state-orissa'
$ctype = ' High Court'
$caseref = 'State of M. P. v. Bhooraji<br>'
$content = array(
	(int) 0 => '<p>B.P. Das, J.',
	(int) 1 => '<p>1. The aforesaid Criminal Reference arises out of a reference made by the learned Sessions Judge-cum-Special Judge, Cuttack, under Section 395 of the Code of Criminal Procedure (in short 'Cr.P.C.'). It is stated by the learned Special Judge that during the course of hearing of G. R. Case No. 257 of 1993 wherein the accused persons were facing trial under Sections 341, 323, 294, 506/34 of the Indian Penal Code (in short 'I.P.C.') and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned counsel for the defence prayed to drop the proceeding on the following grounds :',
	(int) 2 => '<p>'(1) For non-compliance of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.',
	(int) 3 => '<p>(2) Further progress in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in (2000) 18 O.C.R. 364.'',
	(int) 4 => '<p>The learned Special Judge in the reference has stated that the first ground is not tenable since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') was committed on 23.6.1993 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short 'the Rules') came into force on 31.3.1995. So far as the second contention is concerned, the learned Special Judge has entertained a doubt as to whether the Special Court can proceed with the trials in pending cases under the Act, which are at different stages after cognizance prior to pronouncement of the decision by the apex Court in Gangula Ashok v. State of A.P., (2000) 18 O.C.R. (SC) 364 : (2002) 2 S.C.C. 504, without commitment under Section 193, Cr. P.C. or shall send the cases back to the respective Magistrates for taking cognizance and for commitment.',
	(int) 5 => '<p>2. So far as the other cases are concerned, i.e., Crl. Misc. Case Nos. 5564 and 6092/1999, 1516, 3864, 4337 and 1906/ 2000 and Crl. Revision No. 278/1997, the aforesaid ambiguity having crept in, all these cases were heard together and are being disposed of by this common judgment.',
	(int) 6 => '<p>3. Heard learned counsel for the petitioners and learned State Counsel in the aforesaid cases.',
	(int) 7 => '<p>4. So far as ground No. 1 is concerned, it is profitable to go through the relevant statutory provisions.',
	(int) 8 => '<p>Rules 7 of the Rules speaks as under :',
	(int) 9 => '<p>'7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director- General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.',
	(int) 10 => '<p>(2) The Investigating Officer so appointed under Sub- rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.',
	(int) 11 => '<p>(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer.'',
	(int) 12 => '<p>Section 3 of the Act reads as follows :',
	(int) 13 => '<p>'9. Conferment of Powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do -',
	(int) 14 => '<p>(a) for the prevention of and for coping with any offence under this Act, or',
	(int) 15 => '<p>(b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.',
	(int) 16 => '<p>(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.',
	(int) 17 => '<p>(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub- section (1).'',
	(int) 18 => '<p>A conjoint reading of Section 9 and Rule 7 denotes that the State Govt. by notification in the official gazette can empower any of its officers to exercise powers' under the Act. Section 23 of the Act empowers the Central Govt. to make rules for carrying out the purposes of the Act. Accordingly, the Rules were framed which came into force on and from the 31st of March, 1995.',
	(int) 19 => '<p>5. Before going into the questions raised in the reference and in the connected criminal revision and criminal miscellaneous petitions, it is profitable to note the intention of the Legislature in enacting a statute like the present Act when the Cr. P.C. and the I.P.C. have taken care to make provisions governing the field. The purpose of enactment of the statute, as the preface reveals, is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter connected therewith or incidental thereto. Hence, this special statute is enacted with an intention to give speedy trial and to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Let me now see the provisions of the Cr. P.C. dealing with the trial of the offences so committed under the I.P.C.',
	(int) 20 => '<p>Section 4 of the Cr. P.C. reads thus :',
	(int) 21 => '<p>'4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.',
	(int) 22 => '<p>(2) 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.'',
	(int) 23 => '<p>So, Section 4 of the Cr. P.C. envisages that all offences under the I.P.C. shall be investigated, inquired to, tried and otherwise dealt with according to the provisions of the Cr. P.C. and further 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. It is, therefore, obvious that when a special Act like the present one is enacted making special provisions for dealing with the offences under the special statute, the provisions of the special Act shall override the provisions of the Cr. P.C. and only in a situation where the special law does not prescribe any procedure for dealing with such offences, the procedure so laid down in the Cr. P.C. shall govern the field. In the present case, the Act is a special enactment having self- contained procedures to be followed. Hence, the provisions of the Cr. P.C. are kept out of operation so far as the offences under the Act are concerned.',
	(int) 24 => '<p>Section 9 of the Act, which is quoted in the foregoing paragraph, and Section 23 thereof, which empowers the Central Govt. to make rules, denote that special provisions have to be made for the purpose of investigation into an offence committed under the aforesaid Act, for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. It may be noted that Section 18 of the Act makes a provision which bars the application - of Section 438, Cr. P.C. Section 18 of the Act reads as follows :',
	(int) 25 => '<p>'18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.'',
	(int) 26 => '<p>Thus, this provision under the Act is a stringent one and debars a person alleged to have committed offences under the Act from approaching the Court under Section 438, Cr. P.C. for anticipatory bail. The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines etc. So, the intention of the Legislature is not only that an officer not below the rank of a Deputy Superintendent of Police shall investigate, but the aforesaid requirements have to be kept in mind in appointing him, looking into the stringency of the Act, more so provisions for the punishment made thereunder. So, in the given circumstances, the offences under this Act cannot be investigated into by any other police officer in contravention of Rule 7 of the Rules. Moreover, Section 4(2) of the Cr. P.C. envisages 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. In the present case, the special law having been created and special procedures formulated, the provisions of the Cr. P.C. have been excluded. But where no special procedure has been prescribed for offences under a particular law, the provisions of the Cr. P.C. shall be applicable. But in regard to the present enactment or Act, while no procedure as to investigation has been prescribed, at the same breath Section 20 of the Act speaks as follows :',
	(int) 27 => '<p>'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.'',
	(int) 28 => '<p>Hence, on a conjoint reading of the provisions of Section 20 and Section 23 of the Act, the irresistible conclusion that can be drawn is that the investigation can only be done by a police officer not below the rank of a Deputy Superintendent of Police and that the Deputy Superintendent of Police shall be appointed by the State Government/Director-General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it and before appointing such persons, in my view, the authorities must record their satisfaction on the aforesaid aspects.',
	(int) 29 => '<p>Therefore, any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated. Consequently, a criminal proceeding would be vitiated because of non-compliance with the statutory provision, as has happened in the instant case.',
	(int) 30 => '<p>6. In this connection, I may refer to the case reported in 1998 (3) Crimes 279 (Madras) (A. Sasikumar v. The S.P., Vallupuram), and 1999 (2) Crimes 343 (A.P.) (D. Ramalinga Reddy alias D. Babu v. State of A.P.), wherein it was held that investigation into the offence under Section 3 of the Act being not done by the designated police officer, such investigation was declared null and void and the trial was declared vitiated. I do not find any reason to differ from the view taken in the aforesaid decisions.',
	(int) 31 => '<p>7. Coming to the second question whether further progress in the cases under the Act pending in the Special Courts is bad without committal proceeding in view of the principle enunciated in the case of Gangula Ashok (supra), I may quote the view taken by the Apex Court in this regard :',
	(int) 32 => '<p>'16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act.'',
	(int) 33 => '<p>Law is, therefore, well settled in this regard that the Special Court cannot take cognizance of the offence. In other words, a complaint or charge-sheet cannot straightaway be laid before the Special Courts under the Act. The only Court which can take cognizance is the Court of the S.D.J.M. The Sessions Court or the Special Court assumes the power only after committal of the case.',
	(int) 34 => '<p>8. Now the question arises whether the cases, which are pending before the Special Courts and in which trials have already progressed to some extent, can be allowed to proceed as such or will they be reverted back to the Courts of the S.D.J.M. for taking cognizance whereafter the Special Courts shall proceed with the trials. In one of the cases, namely, Criminal Misc. Case No. 3864 of 2000,the accused has come up before this Court challenging the order of the Special Court sending back the case to the Court of the S.D.J.M., Bhanjanagar, for the purpose of taking cognizance of the offence and commitment of the case to the Special Court. Learned counsel for the petitioner in this case has drawn my attention to the orders passed on various dates wherefrom it is revealed that trial before the Special Judge has proceeded to a great extent; most of the P. Ws. have been examined and cross- examined and substantially the accused person has disclosed his defence. Now, as per the learned cpunsel for the petitioner, much hardship would be caused to the accused person if he goes to the stage of cognizance and commitment because there is every likelihood that the prosecution in a subsequent trial will try its best to fill up its lacunae and to come up with witnesses to match the defence plea of the accused person. This is a vital question. This aspect has not been taken into consideration by the apex Court in Gangula Ashok's case (supra).',
	(int) 35 => '<p>9. In a criminal proceeding, it is always to be seen whether any order is prejudicial to the interest of the accused persons or not. So, the trial, according to the petitioner, may be irregular, but such irregularity will not vitiate the trial which has already commenced and proceeded to a great extent. Here is a case where the learned Special Judge has taken cognizance of the offence though he is not legally entitled-to do so as an original Court. So, he cannot have the jurisdiction to try the offence unless the case is committed to him.',
	(int) 36 => '<p>10. Section 460 of the Cr.P.C, which deals with such irregularity, so far as relevant, reads thus :',
	(int) 37 => '<p>'460. Irregularity which do not vitiate proceedings - If any Magistrate not empowered by law to do any following things namely :',
	(int) 38 => '<p>(a) ......',
	(int) 39 => '<p>(b) ......',
	(int) 40 => '<p>(c) ......',
	(int) 41 => '<p>(d) ......',
	(int) 42 => '<p>(e) To take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of the Section 190.'',
	(int) 43 => '<p>Clause (a) or Clause (b) of Sub-section (1) of Section 190 of the Cr.P.C. is the provision to take cognizance of the offence. Exercising power under Section 190(1)(b) of the Cr.P.C. the Special Judge has taken cognizance of the offence in disregarding the provisions of law. But on the other hand it can be said that the cognizance had been taken following the prevalent principles. According to the decision of the apex Court in Gangula Ashok's case (supra), the learned Special Judge has power to take cognizance as a Special Judge if the same could have been committed to him at a later stage. But at the same time it cannot be said that he is incompetent to take cognizance. In my opinion, it is to be seen if the trial, which has progressed and conducted by the competent Court by following the procedure laid down by the Cr. P.C, is declared null and void, whether the same would lead to vitiate the trial or whetHer the same is curable. The same is curable only if neither side is prejudiced. It will depend upon the facts and circumstances of each case. So, at this stage, it can only be observed that it is the Special Court which can decide whether the case is to be sent back to the Court of the S.D.J.M. for taking (sic) and this can only be done by the Special Court after hearing both the sides and recording its satisfaction to the effect that both the sides will not be prejudiced. In the case at hand, i.e., Criminal Misc. Case No. 3864 of 2000, where trial had already progressed to a great extent, in my considered opinion, the order passed by the learned Special Judge sending back the case to the Court of the S.D.J.M. for taking cognizance will definitely be prejudicial to the interest of the accused person, who has already disclosed his defence, and the prosecution witnesses have already been examined. In such circumstances, I have no hesitation to quash the order dated 22.6.2000 passed by the learned Special Judge in G.R. Case No. 56 of 1997 and direct him to proceed further with the case and conclude the trial. This view of mine gets support from a latest decision of the apex Court in State of M. P. v. Bhooraji, J.T. 2001 (7) S.C. 55, wherein it was held as follows :',
	(int) 44 => '<p>'8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It. should be limited to the extreme exigency to avert 'a failure of justice'. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the' bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting 'a failure of justice.' The Superior Court while orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles ' to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.'',
	(int) 45 => '<p>In cases of similar nature, it is open to the parties to file applications before the learned Special Judge indicating whether they would be prejudiced or not. The learned Special Judge after hearing parties shall pass appropriate order in the light of the observations made above.',
	(int) 46 => '<p>11. The reference is answered accordingly. The criminal misc. cases and the criminal revision are disposed of accordingly.<p>',
	(int) 47 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 48
$i = (int) 47
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Subject	Criminal
Court	Orissa High Court
Decided On	Nov-12-2001
Case Number	Criminal Reference No. 1 of 2000 with Criminal Misc. Case Nos. 5564 and 6092 of 1999, 1516, 1906, 38
Judge	B.P. Das, J.
Reported in	2002(I)OLR252
Acts	Code of Criminal Procedure (CrPC) , 1973 - Sections 395 and 460; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 9; Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - Rule 7
Appellant	Sessions Judge-cum-special Judge and ors.
Respondent	State of Orissa
Appellant Advocate	Ashok Mohanty, ;D.P. Dhal, ;R.K. Nayak, ;R. Mohapatra, ;S.K. Gupta and ;S.K. Tripathy, Advs.
Respondent Advocate	Addl. Govt. Adv.
Cases Referred	State of M. P. v. Bhooraji

Sessions Judge-cum-special Judge and ors. Vs. State of Orissa - Court Judgment