Criminal Appeal No.344/00 The Appellants/ Accused 1 to 3 were directed to be released on bail in and by the order of this Court dated 18.4.2000 in Crl.M.P.No.2241/2000. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21-08-2006 CORAM THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR CRIMINAL APPEAL No: 344 of 2000 .... 1. Ravi Gounder 2. Rasappa Gounder 3. Easwara Gouder ..Appellants/Accused 1 to 3 v State rep. by Deputy Superintendent of Police, Gobichettypalayam, Erode District. Crime No.380 of 1999. ..Respondent/Complainant Criminal Appeal has been preferred against the judgment passed by the learned Principal Sessions Judge and Special Judge, Erode, in S.C.No.205 of 1999, dated 16.03.2000. For appellant :: Mr.B.Kumarasamy for M/s. Uthirasamy and K. Ravikumar For Respondent :: Mr.J.C.Durairaj, Government Advocate (Crl.Side) JUDGMEENT This Criminal Appeal has been filed against the judgement in S.C.No.205 of 1999, dated 16.3.2000 passed by the learned Principal Sessions Judge/Special Judge, Erode, convicting A.1 and A.2 for the offence committed by them under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and imposing the punishment of rigorous imprisonment for two years; A1 to A3 for the offence committed by them under Section https://hcservices.ecourts.gov.in/hcservices/ 325 IPC and imposing the punishment for one year; and A2 and A3 for the offence committed by them under Section 323 IPC and imposing simple imprisonment for six months and the sentences shall run concurrently. 2. Learned counsel appearing for the appellants submitted that Without going into the merits of the appeal, in view of the decisions of our High Court and the Hon'ble Supreme Court, the appeal can be allowed straightway as in the instant case as well, the learned Principal Sessions Judge -cum- Special Judge, Erode has taken cognisance of the offence under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act directly without there being a committal by the concerned Judicial Magistrate. He further submitted that the learned Sessions Judge ought not to have taken cognizance of the case without an order of committal passed by the concerned Judicial Magistrate and in this case, the Investigating Officer filed the final report before the learned Sessions Judge and the learned Sessions Judge committed an error in taking cognizance on the basis of the final report without an order of committal. 3. Learned counsel for the appellants relied upon the decision in Mani @ Palanisami Vs. State, reported in 2001 (2) L.W. (Crl) 755, wherein this Court held as follows:- "5. ... It is his submission, that, therefore, the entire proceedings are vitiated. In support of his plea, he relies upon a judgment of the Supreme Court in Gangula Ashok v. State of A.P.(2000 Supreme Court Cases (Crl.)488) 6. I have heard the learned Government Advocate on the contention and also considered the materials. The Supreme Court in the above judgement held that from Sections 14 and 2(1)(d) of the Act, it is for the trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court and though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry and inquiry must always be a forerunner to the trial. The Court of Sessions is specified to conduct a trial and no other Court can conduct the trial of offences under the Act and evidently the legislature wanted the Special Court to be a Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a court of session and https://hcservices.ecourts.gov.in/hcservices/ designation of it as a Special Court would not denude it of its character or even powers as a Court of Session and the trial in such a Court can be conducted only in the manner provided in Chapter XVII of the Code which contains a fasciculus of provisions for "trial before a court of session". The Supreme Court further observed that Section 193 of the Code has to be understood in the aforesaid backdrop and the section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if "the case has been committed it by a Magistrate" as provided in the Code. The Supreme Court further held that two segments have been indicated in Section 193 as exceptions to the aforesaid interdict and one is, when the Code itself regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting those exceptions is indicative of the legislature mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly. Without the case being committed to it by a Magistrate and neither in the Code nor in the Act is there any provision whatsoever, not even by implication, that the specified Court of Sessions (Special Court) can take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a Magistrate. As such the charge sheet or complaint cannot straight away be filed before such Special Court for offences under the Act and it can be discerned from the hierarchical settings of criminal courts that the Court of Session is given a superior and special status. Hence the legislature would have thoughtfully relieved the Court of Sessions from the work of performing all the preliminary formalities which Magistrates have to do until the case is committed to the Court of Session. 7. In view of the law enunciated by the Supreme Court in the above judgment, the cognizance taken by the learned Sessions Judge and the subsequent trial are vitiated. Therefore the conviction of the appellant cannot be maintained and it has to be set aside, since https://hcservices.ecourts.gov.in/hcservices/ the learned Sessions Judge acted without jurisdiction on account of the absence of an order of committal, when he took cognizance". 4. In Moly and another Vs. State of Kerala, reported in 2004 (4) SCC 584, the Hon'ble Supreme Court dealt with a similar issue wherein the appellants faced trial for alleged commission of offences punishable under Sections 31(i)(ii), 3(1)(v) of the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities)Act, 1989 (in short "the Act"). The trial court (Special Court under the Act) found the appellants guilty and imposed sentences. The said court had suo motu entertained and registered the complaint and thus it had taken cognizance of the offence straight away without the case being committed to it. The issues involved in the appeals before the Supreme Court were whether the Special Court under the Act is a Court of Session and if so, whether in view of the interdict contained in Section 193 Cr.P.C., it cannot take cognizance without the case being committed to it. In that context, The Supreme Court held that, "It is clear from Section 14 of the 1989 Act that it is for trial of offences under the Act that a particular court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code (Code of Criminal Procedure 1973) or in the Act, it is clearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as "every inquiry, other than a trial, conducted under this Code by a Magistrate or court". So trial is distinct from inquiry and inquiry must always be a forerunner to the trial. Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Evidently the legislature wanted the Special Court to be a court of Session. Hence the particular court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for "trial before a Court of Session". Section 193 of the Code has to be understood in the aforesaid backdrop. The Section imposes an interdict on all Courts of Session against taking cognizance of any https://hcservices.ecourts.gov.in/hcservices/ offence as a court of original jurisdiction. A Court of Session can take cognizance only if "the case has been committed to it by a Magistrate" as provided in the Code. Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the Section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate. Neither in the Code nor in the Act is there any provision whatsoever, not even by implication, that the specified Court of Session (Special Court) can take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a Magistrate. It can be discerned from the hierarchical settings of criminal courts that the Court of Session is given a superior and special status. Hence the legislature would have thoughtfully relieved the court of Session from the work of performing all the preliminary formalities which Magistrate have to do until the case is committed to the Court of Session. A reading of the provisions concerned (Provisions under Section 4(2) Cr.P.C.) makes it clear that if another enactment contains any provision which is contrary to the provisions of the Code, such other provision would apply in place of the particular provision of the Code. If there lis no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby. Section 5 of the Code cannot be brought in aid for supporting the view that the Court of Session specified under the Act obviates the interdict contained in Section 193 of the Code so long as there is no provision in the Act empowering the Special Court to take cognizance of the offence as a Court of original jurisdiction. Hence, there is no doubt that a Special Court under the Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to https://hcservices.ecourts.gov.in/hcservices/ it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge- sheet cannot again straight away be laid down before the Special Court under the Act. The Sessions Court in the case at hand undisputedly has acted as one of original jurisdiction, and the requirements of Section 193 of the Code were not met." 5. In view of the law enunciated by the Hon'ble Supreme Court, it is clear that the 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 straightway be laid before the special Court under the Act. Consequently, taking direct cognizance on the basis of the final report filed by the Investigation officer and the subsequent trial are vitiated. Therefore, the conviction of the appellants cannot be maintained and it has to be set aside, since the learned Sessions Judge has acted without jurisdiction on account of the absence of an order of committal when he took cognizance. It is also submitted by the learned counsel for the appellants that the first accused is no more. Therefore, the conviction of the second appellant under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, is set aside. 6. In the result, the Criminal Appeal is allowed. The conviction and sentence of the appellants are set aside. Bail Bond, if any, executed by the second appellant shall stand cancelled. Fine if already paid, shall be returned to the appellants. kvsg Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Copy to: 1.The Principal Sessions -cum- Special Judge, Erode. 2.The Public Prosecutor, Madras. 3.The Deputy Superintendent of Police, Gobichettipalayam, Erode District + 1 cc to Mr. B. Kumarasamy, Advocate SR No. 37481 Judgment in Crl.Appeal No.344/2000 BV(CO) SR/13.9.2006 https://hcservices.ecourts.gov.in/hcservices/