IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.466 of 2001 (Old No.344 of 1995) Lal Singh & others …….….…. Appellants Versus The State …………… Respondent Dated: August 18, 2009 Sri Neeraj Upreti, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 17.02.1995 passed by Special Judge/Sessions Judge, Pithoragarh in Special S.T. No.3 of 1991, State Vs. Lal Singh & others, whereby the learned Special Judge/Sessions Judge has convicted the appellants/accused Lal Singh, Narendra Singh, Kundal Singh and Gopal Singh under Section 3(1)(x) of The Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be referred as the Act) and sentenced each of them to undergo six months’ R.I. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.4 Mohan Ram moved an application to District Magistrate, Pithoragarh on 26.11.1990 with the averments that he is 2 the resident of village Digra Patti, Badari and belongs to the Harizan community and is in service in 20 Kumaon Regiment and on the date of incident, he had come on leave. Appellants-accused also belonged to the same village. On 25.11.1990 at about 12:30 P.M., when the complainant was returning from Badda market after carrying his articles of worship to his house, on the way in between Panthuri and Digra near Seradhol Tok, appellants-accused surrounded and pounced upon him and threatened him calling him ‘Dumra’. On the noise raised by the wife of complainant, appellants-accused went away from there threatening the complainant to his life. With the same averments, the application Ex.Ka-1 was filed by the complainant to the D.M., Pithoragarh. On this application on 26.11.1990, D.M. Pithoragarh directed the Tehsildar, Pithoragarh to submit report after investigation. Tehsildar, Pithoragarh further directed Supervisor Kanungo, Munakot for the action in the above-said matter immediately on the basis of which Supervisor Kanungo prepared the Chik FIR on 26.11.1990 at 6:00 P.M., i.e. Ex.Ka-2. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). During investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-3. The I.O. also recorded the statements of witnesses during investigation and on completion of investigation, filed the charge sheet against the appellants-accused on 7.5.1991 before the court of Special Judge/Sessions Judge, Pithoragarh, i.e. Ex.Ka-4. 4. On 12.8.1992, learned Special Judge, Pithoragarh framed the charge against the appellants/ 3 accused under Section 3(1)(x) and (xv) of the Act. The charges were read over and explained to the appellants/ accused, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 Smt. Jayanti Devi, wife of complainant, P.W.2 Pooran Singh, P.W.3 Pushkar Ram, P.W.4 Mohan Singh, complainant and victim, P.W.5 Nain Singh and P.W.6 Devi Ram, Kanungo/IO of the case. 6. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. In oral evidence, D.W.1 Kharak Singh, Supervisor Kanungo was examined. In documentary evidence, they filed a copy of Daily Book, i.e. Ex.Kha-1. 7. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Special Judge/Sessions Judge, Pithoragarh vide judgment and order dated 17.02.1995 has convicted and sentenced the appellants/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 8. Sri Neeraj Upreti, learned counsel for the appellants/accused argued that the charge sheet in the present case was filed in the court of Special Judge/Sessions Judge, Pithoragarh on 7.5.1991 and the Special Court i.e. Special Judge/Sessions Judge Pithoragarh under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 could not take cognizance of any offence straightway without the case being committed to the court. He further submitted that 4 the charge sheet cannot straightway be laid before Special Court. I find force in the arguments raised by counsel for the appellants for the reasons to be assigned hereinafter. 9. As regard the jurisdiction, it is necessary to refer Section 14 of the Act which is as follows: - “14. Special Court- For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act.” From the above-said provision, it can be seen that the Special Court is constituted by the Act with concurrence with the Chief Justice of the High Court by a Notification with an object of speedy trial of the offences under the Act. 10. A perusal of the Act does not show any procedure prescribed for trial of the offences under the Act, and also does not specifically bar the procedure prescribed under the Cr.P.C. No doubt the language employed in the above Section shows that it is a Court of Session. 11. The relevant provisions of the Cr.P.C are in Section 173, which deals with report of the Police Officer after completion of investigation. Section 190 Cr.P.C. deals with the procedure of taking into cognizance of the offence by the Magistrate and after taking cognizance of the offence, the procedure prescribed under Sections 207 and 209 of the Cr.P.C. has to be followed. At this juncture, it is relevant to extract the provisions under Sections 193 and 209 of Cr.P.C.: - 5 “193. Cognizance of offences by Courts of Session: Except as otherwise provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 209. Commitment of case to Court of Sessions when offence is triable exclusively by it- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall- (a) commit the case to the Court of Sessions; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Sessions.” 12. A reading of Section 193 shows that a Court of Sessions is barred from taking into cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate and Section 209 of the Cr.P.C expressly provides that if it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, such cases shall be committed to a Court of Sessions. 6 13. A combined reading of these two provisions only goes to show that the Magistrate Court is the initial Court to take cognizance of any offence including that of an offence exclusively triable by a Court of Sessions. It is for the Magistrate to decide whether the offence is exclusively triable by the Court of Sessions or not. In other words, if the offence falls under the category of offences which are exclusively triable by a Court of Sessions, the Magistrate has to commit the same to the Court of Sessions for trial. It further follows that the Court of Sessions cannot directly take into cognizance of any offence unless provided by the Cr.P.C or by any other law. After such committal, the procedure for trial prescribed under Chapter XVIII of the Cr.P.C has to be followed. 14. Now, it has to be seen whether the Special Court constituted under the Act has made any express provision with regard to taking into cognizance of an offence by the Special Court without there being any committal proceeding by the Magistrate as provided under Sections 193 and 209 of the Cr.P.C. 15. As already observed, except Section 14 of the Act, no other express provision is available under the Act to try the offence under the Act by taking into cognizance straightway. Further no procedure to try any offence by Special Court is prescribed under the Act equivalent to that of the procedure prescribed under Chapter XVIII of the Cr.P.C, nor there is any specific provision expressly excluding the procedure prescribed under Sections 193 and 209 of the Cr.P.C. 16. Learned counsel for the appellant/accused referred a judgment of Hon’ble Supreme Court in the case of Moly & another Vs. State of Kerala reported in 2004 7 SCC (Cri.) 1348 in support of his case and relied on para 16 of the said judgment which reads as under: - “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 straight away be laid down before the Special Court under the Act. We are reiterating the view taken by this Court in Gangula Ashok v. State of A.P. and in Vidhyadharan v. State of Kerala in above terms with which we are in respectful agreement. The Sessions Court in the case at hand, undisputedly has acted as one of original jurisdiction, and the requirements of Section 193 were not met.” 17. Therefore, in the light of the detailed discussion made in the judgment referred to above and the relevant provisions of the Act and the Cr.P.C. as well as in view of the aforesaid judgment of Hon’ble Supreme Court in the case of Moly & another (Supra), I am of the considered view that Special Court could not have tried the offence under the Act by directly taking into cognizance of the offence deviating from the procedure prescribed under the Cr.P.C and thereby vitiate the trial of the offence by the Special Court rendering such trial as without jurisdiction and consequently any judgment rendered by such Court without jurisdiction, would not be a judgment in the eye of law. 18. Learned counsel for the appellants/accused further argued that the complainant P.W.4 Mohan Ram is a Lohar by caste and the caste ‘Lohar’ does not come 8 within the category of Scheduled Castes and as such the provisions of the Act will not apply in the case at hand. I also find substance in this argument raised by counsel for the appellant/accused. P.W.1 Smt. Jayanti Devi, wife of complainant Mohan Ram, has stated in her examination- in-chief that they are Lohar by caste. Likewise, P.W.3 Pushkar Ram, brother of Mohan Ram, also deposed in his examination in chief that they are Lohar by caste. Therefore, it is clear that the complainant P.W.4 Mohan Ram is a Lohar by caste. Before any further discussion in the matter, it is pertinent to mention Section 2(c) of the Act, which is as under: - 2(c) ”Scheduled Castes and Scheduled Tribes” shall have the meanings assigned to them respectively under clause (24) and clause (25) of article 366 of the Constitution; Clause 24 of Article 366 of the Constitution of India is also reproduced as under:- 366. (24) “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution; Article 341 of the Constitution of India defines Scheduled Castes which is also reproduced as under: - “341. Scheduled Castes- (1) The President [may with respect to any State {or Union territory}, and where it is a State [***], after consultation with the Governor [***] thereof], by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for 9 the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State [or Union territory, as the case may be]. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” The Constitution (Scheduled Castes) Order, 1950 with regard to State of Uttar Pradesh is also essential to mention here which reads as under: - “Part XV- Uttar Pradesh” 1. Agariy 2. Badhik 3. Badi 4. Baheliya 5. Baiga 6. Baiswar 7. Bajaniya 8. Bajgi 9. Balahar 10. Balai 11. Balmiki 12. Bangali 13. Banmanus 14. Bansphor 15. Barwar 16. Basor 17. Bawariya 18. Beldar 19. Bariya 20. Bhantu 21. Bhuiya 22. Bhuyiar 23. Boria 24. Chamar, Dhusia, Jhusia, Jatava 25. Chero 26. Dabgar 27. Dhangar 10 28. Dhanuk 29. Dharkar 30. Dhobi 31. Dom 32. Domar 33. Dusadh 34. Gharami 35. Ghasiya 36. Gond 37. Ghul 38. Halbura 39. Hari 40. Hela 41. Kalabaz 42. Kanjar 43. Kaparia 44. Karwal 45. Khairaha 46. Kharwar (excluding Benbansi) 47. Khatik 48. Khorot 49. Kol 50. Kori 51. Korwa 52. Lalbegi 53. Majhwar 54. Mazhabi 55. Musahar 56. Nat 57. Pankha 58. Parahiya 59. Pasi, Tarmali 60. Patari 61. Rawat 62. Saharya 63. Sanaurhiya 64. Sansiya 65. Shilpkar 66. Turaiha.” 19. In view of what has been quoted above, it is proved that the caste ”Lohar” does not fall in the Constitution (Scheduled Castes) Order, 1950 as applicable at that time in State of U.P. now in the State of Uttarakhand. Therefore, the caste “Lohar” does not fall within the ambit of sub-clause 24 of Article 366 as deemed under Article 341 of 11 the Constitution of India and also u/s 2(c) of the Act. Accordingly, it is also proved that the caste “Lohar” is not a scheduled caste as defined under Section 2(c) of the Act. Resultantly, the complainant Mohan Ram (P.W.4) is not a member of scheduled caste category. Consequently, the entire trial proceedings initiated on the basis of the fact that the complainant is a member of scheduled caste candidate, stands vitiated. 20. For the reasons recorded above, the appeal is allowed. The judgment and order dated 17.02.1995 passed by Special Judge/Sessions Judge, Pithoragarh in Special S.T. No.3/1991, State Vs. Lal Singh & others, is hereby set aside. The conviction and sentence as awarded against the appellants/accused, as discussed above, is also hereby set aside. Appellants/accused are on bail. They need not surrender unless required in any other case. Their bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) August 18, 2009 Rajeev Dang