B» :-'j;. "t :z^ 9efs& t.ys •uurf ' tf IN THE ®a XX -HI®COURT OF M^« % ',.%:''11^3-sl:£^ , CRIMI-NAfc.ffiteXI.^S 1.. Rdpraa aged abou-t 18 years SSffi; S/o Palturta resiclent of Ha'fckeshwar Nayapara Qham'tart P.StDham'tarl Tahsil Bhamtari, OIstt, Ralpur 2, Bhafca't Kumaraaged sbout 19 years S/o Gangaram Nishad r/Q Hatkeshwar Nayapara Dhaiatari P.S. Dhamtarl Tahsl* Dhantari, Olstt. Raipur ... Appellants/ Accused oersons Versus State of Madhya Pradesh / Respondent M2S2£S23yi?-2^-5SE22l-y^S-3ZM2l.?f-itle^2y£t-2£ Crininal Procedure. KS-ff aSSw, ;' '"" .H "vfM^ -^ss^- k^^ HiQHCOURTOF CHHATTISGARH : BiLASPUR SINSLE BENCH : HON'BLE SHRi MANiNDRA MOHAN SHRSVASTAVA.J. s:i^:i!!R':aa» Cr.A. N0.1599/1995 Rupram and another versus . Stete of Madhya Pradesh Mow C.G.) FOR PRONOUNC6MENT QF ORDERON ^ SEPTEMBER' 2010 APPELLANTS RESPONDENT: Sd/- ManindraMo^anShrivastava Judge '«». -;—.-J; " '""->»: ,..: !lfc. f 1 ••s.,..-/^ '^'^.^' ."<;-?'"•" BS~i11te::'uiii. HIGH COURT OF CHHATTISGARH : BtLASPUR Sinate Bench: Hon'bie Shri Manindra Mohan Shrivastava. J. APPELLANTS RESPONDENT Cr.A.No.1589/1985 Rupram and another Versus State of Madhya Pradesh (Now C.G.) MEMOS5ANDUM OF APPEAL UfS 374(2} QF THE COURT OF CR!Ui!NAL PROCEDURE Present: - Shri Pankaj Agrawai, counsel for the appeiianis. Shri Sushil Dubey, Govemment Advocate for the State. ORDER (Passed on ...Z;:~September, 2010) This appeai is directed against the judgmant of convicBon and order of sentence dated 25/"i1/1995 passed by the Speciai Judge (Sessions Judge, Raipur) in Criminai Case (Speciai) No.412S1 whereby the appeiiants have been heid guiity of commission of offence under Section 3(1)(11) of the Scheduled Caste/Scheduied Tribss Atrocities Act, ^88Q and sentenced to undergo rigorous imprisonment of six months. 2. Case of the prosecution is that in the night of 21/10/1^1, when compiainant-Ku. JyoU (PW1), who belongs to Gond tribe was sieeping in her room, at 'about 11 :M> PM, ttie appellants entered her room and outraged her rnodesty by puiiing ^w cfothes. Flrst information Report (Exhibit P;1) wes lodged / by Ku. JyoU (RW1) in Police Station - Dhamtari, upon which the poHce registered s«»- crime aileging commission of offence under Section 3(1)(11) of the Scheduted J • . '. Caste/Scheduied Tribes AtrociUes Act, 1989. After invesCgation, a charge sheet was flied in ttie Coun of Special Judge, Raipur. nnnimiirimiittnTTil 3. Reiying upon the testimony of Ku. JyoU (R<V1), Kamia Bai (PW2), Ram Bai (PW3), investigating OfHeer-Ramkrishna Singh (PW5) and disbeiieving the defence of fhe appeilante, ieamed.triai Court heid appeilants guiity of commission of offence aiieged and sentencedthem to undergo Ri for s'K months. 4. Assaiting ttie vaiidity of the judgment.of convietion and sentence, ieamed counsei for the appeiiants raised ftinciamentai issue with regard to Jurisdicfcn of the Special Judge to try the offence alleged against the appellants. Learned counsei for the appeliants urged ihat charge sheet was fiied in the Court of Spe^iai Judge without there being any committai proceedings drawn by the concerned Judiciai Magistrate as required under Section 193 of ttie Code of Criminai Procedure, 1973. it is subraitted that the iearned Speciai Judge couid not have taken cognizancs of the case upon submisston of the charge sheet uniess the same was duiy committed to it for triai as required under the provisions of the Coo'e of Criminai Procedure, 1973 and therefore the entire triaj is vitiatsd and the impugned judgment of conviction couid not be sustained in e eye of iaw. Learned counsei further argued that the sole testimony of the complainant-Ku. Jyoti (PW1)was iiabte to be disbetieved as the sams was not corroborated by other prosecuUon witnesses and the prosecution has faiied to prove ttiat any overt act was done by th®appeiiants towards eommission of aiieged.offence. it is aiso submitted that as Vishwanath (PW4) did not support Ifte case of ttie prosecution and the prosecution faiied to examine other witnesses narftei^ Aqun Sahu and Pusau Ram, the Court beiow ought to have disbelieyed the entire case of the Ditosecution. It is also submitted that according to thetesfrimony ofthe compiainant herseif, the atteged offence was committed in the night and there Was compiste daric and that other witnesses had not seen the appeilante entering and outraging her moctesty and coming outof the house and there was no identification aiso. Therefore, the coriviction of appeilante is unsustainabte under the iaw. 5. On the other hand, learned counsei for the State woutd submit that the ground reiating to iiiegaiity in hoiding trial on the ground of non-committai by the Magistrate was not raised before the ieamed Court below nor any specific ground has been taken in the appeai and e same is therefore liable to be ignored. Learned counsei further submits that ttie same is mere irregularity within the meaning of Section 485 of the Code of Criminai Procedure and therefore onty on that ground, triat could not be heid viUated. Further submission of ieamed counsel for the Stata is that eommission of offence has been proved by unimpeachabie testimony of compiainant-Ku. JyoU (PW1), Kamia Bai (PW2), Rarn Bai (PW3), Investigating Officer-Ramkrishna Singh (PW5) and therefore the conviction ofthe appeliants is justand proper. 6. The flrst ground raised by leamed counset Tor the appeilant with regard to the very jurisdicUon of the Speejai Judge to take upon trial without the case being committed to ite Court by the jurisdictional Magistrate goes to the matter and is a ground reiating to the very jurisdiction and authority of the Speciai Judge to try ma off^nce alieged. 1 am not inciined to reject the appea! at this stage only on the ground that no specific ground to that efrect has been raised befors this Court in ttie memo df appeal or that such ground has not been taken before the triai Court. More so, from the perusal STthe triai placed before ttiis Court, it is found that the charge sheet was directly flled in the Court of Special Judge, Ralpur as is evident from the opehing order sheet dated 23/12/1991 . It has not been disputed by the iearned counsei for the State and is cteariy borne out from fiie records of .ya^a! '^•.;""'' '^'"'"'•^ ^. ^ ^ :<-^f£;;":<. Speciai case no.4'12/91 of the Court of Special Judge, Raipur that tiie poiioe of (SpeciaO Poiice Station-Dhamiari flied charge sheetagalnst the appeiiante in the Court ofSpeciai Judge, Raipur as i? evident from the order shaet dated 23/12/91. There is no reference to any committai proceedings drawn by Uie jurisduAionai R4agistrate. This fact is aiso very ciear from the impugned judgment of convictton and sentence. Therefore, it is beyond any' pale of doubt that the police fiied charge sheet in the Court of Speciai Judge, Raipur without there being any committa! proceedings drawn by the jurisdicUonai Magistrate and wthout there being any order of committai as required under SecUon 193 of the Code of Criminai Proeedure. It is thus ciear that the Speciai Judge himself toolc cognizance of the case upon submission of charge sheet directly in his Court. ^ltE 7. The question therefore which arises for consideration betore this Court is whether ttie Special Judge had jurisdiction and authority to take cognlzance wittiout the case being committed to it by a competent Magistrate. The question is no longer res integra in view ofthe judgments cf Supreme Court in the case of Gansula Ashok and another v. State of Andhra Pradesh (2000J 2 SCC 5<^. vidvadharan v. State of Kerala. JT 2S03 (9) SC 88 and M.A. Kuttappan v. E. Krishnan Navanar and anottier. AiR 2004 Supreme Court 2825. in the case of Ganguia ftshok (Supra), Supreme Court (teaiing with the identicai issue heid - '10. SecUon 193^of the Code has to be understood in the aforesaid b,dckdrop. The section Imposes an interdict on ail Courts of ^esston against taking ctignzance of any offence as . a court of origina! jurisdiclicin. It can take cognizance oniy if "the case has been commted to it by a Magistrate", as provided in the Code. Two segments have been indicatec! in Section 193 as exceptions to ths aforesaid interdict. One is, when ttie Code Hself has provided differentiy in express language regarcling taking of cognizance, and the secend is when any other law has provided differenUy in express .'llB^^j; language regarding taking cognizance of offences under such law. The word "expressly" which is smployed in Section 193 denoting those exceptions is indieaSve of the iegisiative mandate ttiat a Court or Session can depart from the interdict contained in the section only if it te provided differently in ctear and unambiguous terms. !n othsr words, uniess it is positivaty and speciflcaity provided differently no Court of Session can teke cognizance of any offence directly, without the case being coniresitted to it by a Magistrate. 11. Neither in the Code nor in the Act is there any provision whatsoevsr, not even by implteaBon;' that the specified Court of Session (Spssial Court) can take cognteance <rf the offence under the Act as a court of oriaina! jurisdiction without the case being committed to it by a Magistrate. If that be so, thers is no reason to think that the charge-sheet or a complaint can straight away be filed before such Speciai Court for offences under the Act. !t can be discemed from the hierarchical settings of criminai courts that the Court of Se^ion is given a superior and special status. Hence we think that the legislature would have thoughtfu!ly relieved the Court of Sesston from the work of performing all the preliminaiy formaiities which Magistrates have to do untif the case is committed to the Court ofSsssion." si"l1i ;tas 8. The afbresaid view taken by the Supreme Court was reiterated in the case ofVidyadharan (Supra) wherein Supreme Court concluded by observing - "20. Hence, we have no doubt that a Speeiai Court under this Act is essentiai'y a Court of Session and it can teke cognizance of the offence when ttie cas®is committed to it by the Magistrate in accordance with the provisions of the Code. !n ottier words, a complaint or a charge-sheet cannot straight away be iaid down before the Special Court under Uie Act. We are reiterating the view taken by this Court in Gangula AsAafr v. State of A.P. (2000) 2 SCC 504 in the above terms with which we are in respectful agreemenf. The Sessions Court in the case at hand, undisputediy,- has acted as one of original jurisdiction, and ths requirements of Section 193 of the Cods .. wsre nof met." . Relyfng upon/tne eariier two decisions in the case of M.A. KuttaM»an (Supra), Supreme Court conciuded a^nder "10. In view of the aforesaid decisions of this Court it coutd hot be contended before us Uiat the Speciai Judge had jurisdjction to entertain ttie complaint directfy and to issue process after taking cognizance without the case being committed to it by a competent Magisfrate. The question is no ^^ •l &. ^ longer r^ intBgra and, therefor®,it fmist be held that Uie teamed Speciat Judge in the instant case erred in entertaining a compiaint filed before it and in issuing process afier taking cognizance wfftout the case being committed to it for triaf by a compeient Magistrate. Though flie Hgh Court has quashes' the proceeding on a different ground aitogsther, we are satisfied that the impugned order of the Special Judge deserves to be sef aside so far as ft related io iis teking cognizance of an offence under the 1989 Act, and issuing process on the basis of the corapiaint dirsctiy iTiads before SS by the compiainant." A Division Bench of Madhya Pradesh High Court in the case of 8h<x»raii and others v. State of M.P. reoorted in (200111 M.P.J.R. 119 relying upon ttie judgment of Supreme Court and Ganguia (Supra) has also held that the Court of Sessions, specified as a Speclai Court under the Act of 1989 can teike cognizance only upon committal of case to it byjurisdictional Magistrate. 9. In so far as provisions of Section 465 of the Code of Criminat Procedure is concerned, sufRce tosay that ttie said provision cannot be made applicable so as to cure a defect of jurisdicUon as it is not a mere omission or irregutarity whteh can be cured, as held by the Supreme Court in ttie case of H.N. RishbtKt and anottier v. State of Delhi, AiR 1955 S.C. 196 and in the case of Bhooraji 10. in the resuit, it is held that the trial in the instant case was without jurisdiction and contrary to the provisions contained under Section 193 of the Code of Civii Procedure and ttierefore the entire triai is vitiated and the impugned judgment of c^nyiction and sentence is unsustainable in law. The appeal therefor®succeeds on this short'-®:oundaione and is hereby ailowed. The impugned judgment of convictiori and sentence is set aside. The Court betow is directed to retum the charge sheet and papers therewith to the prosecution whp may resubmit ttie sam®to the competent jurisdictionat Magisteate for further '^ proceedings in accordance with iaw. As the apiieilante are on bail, they are directed to appear bsfore jurisdictional committal Magistrate, Raipur on 18/10/2010 and on sueh appearance, they shali be eniarged on bait on e same terms and conditions on which they were on baii before ftis Court during e pendency of appeal, for their further appearance before the eornmittai Magistrato, as may be directed from Bme to time. ^ j, Manindra Mofean Shrivastava Judge '«»-