HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.3512 of 2011 ORDER:- The petitioners herein are accused Nos.1 to 7 (A-1 to A-7) in PRC No.17/2011 on the file of the Court of Additional Judicial First Class Magistrate, Tiruvuru (JFCM). They filed this petition to quash the said PRC No.17/2011. 2. The above PRC No.17/2011 arises out of Crime No.59/ 2010 of Tiruvuru Police Station. The offences alleged against the petitioners are those punishable under Sec.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short - Act) and Secs.323 and 506 IPC read with Sec.34 IPC. It must be mentioned here that in the charge sheet it is mentioned that the petitioners earlier filed Criminal Petition No.6152 of 2010 under Sec.482 of the Code of Criminal Procedure, 1973 (Cr.P.C) to quash the FIR in the aforesaid Crime No.59/2010 and this Court in that petition directed the police not to arrest the petitioners till the completion of investigation and filing of charge sheet and it is further stated that accordingly petitioners have not been arrested by the police and charge sheet is now filed. That Criminal Petition No.6152 of 2010 was disposed of on 13.12.2010 without quashing the FIR but giving a direction that petitioners may not be arrested till the conclusion of the investigation and filing of the charge sheet if any. This was placed as information before the JFCM while filing the charge sheet. 3. After the filing of the charge sheet the learned JFCM by his order dated 11.04.2011 took cognizance of it as the aforesaid PRC for the offences punishable under Sec.3(1)(x) of the Act and Secs.323 and 506 IPC r/w 34 IPC against all accused and issued non-bailable warrants (NBWs). 4. The learned senior counsel Sri Gangaiah Naidu firstly contended that the allegations in the charge sheet even if believed do not attract the offence under Sec.3(1)(x) of the Act and also the other offences and consequently this Court should quash the case. In support of this contention he relied upon several decisions. Secondly he contended that the FIR itself was given with a delay of three days after the alleged occurrence and this itself shows that the case is not a truthful one and it has been foisted at the instance of the prosecution party i.e. the de facto complainant Thotapalli Venkateswara Rao and his mother Thotapalli Danamma and their other witnesses. He then thirdly argued that the JFCM has no power to take cognizance of the charge sheet and issue process and that as the case has to be committed to the concerned special Court of Session which is competent to try it only that Court can take cognizance and issue process i.e. either summons or NBWs and the JFCM was not right in issuing NBWs straightaway and he ought to have considered issuing summons in the first instance and only if there was no scope for securing the presence of the accused through summons then he could have thought of issuing NBWs. 5. On the other hand the learned Public Prosecutor submitted that the allegations in the charge sheet do disclose the offences mentioned in it and the learned Magistrate was also right in issuing NBWs in the first instance as the case is a warrant case. Then coming to the contentions of the learned counsel for the petitioners on the merits of the matter he pointed out that they all raise disputed questions of fact which have to be decided by the special Court of Session and therefore this Court cannot in this petition go into the same. 6. Regarding the contention of the petitioners counsel about the merits of the matter, one plea very prominently raised by him is that the allegations in the charge sheet show that the place where the transaction relating to the offence under Section 3(1)(x) of the Act took place was the house premises of A2 in the concerned village and therefore the said abuse cannot be said to have taken place in public view and consequently there is no basis for prosecuting the petitioners for the said offence. In support of this contention he relied upon some decisions which support the above view. Hence the said decisions are not mentioned. The question however is whether the above contention can be accepted on the allegations made in the charge sheet. 7. It may be noted that the incident relating to Section 3(1)(x) of the Act is said to have occurred at the house premises of A2 in a panchayat held there. Several elders gathered there according to charge sheet. It is not mentioned in the charge sheet that the said incident allegedly occurred in an enclosed place which is not visible to public. In the above circumstances it cannot be said on the allegations in the charge sheet that the incident occurred at a place which was not in public view. However this aspect has to be finally decided on evidence or in a discharge petition. Hence the said contention cannot be accepted in this petition. 8. Then coming to the contention relating to the delay in giving the FIR, that aspect would also fall within the purview of a disputed question of fact. The question whether there was any delay in giving the FIR and if so whether or not it is fatal to the case has again to be decided on evidence. Hence this contention cannot also be accepted in this petition. 9. The next contention of the petitioners counsel relates to taking cognizance of the case by the JFCM. It is now settled that the offences under the Act have to be tried by the special Court of Session and the cases relating to offences under the Act have to be committed to the said special Court by the concerned JFCM. In this case after filing of the charge sheet the learned Magistrate took cognizance of it as a PRC. It may be noted that a Magistrate will register a case as a PRC i.e. preliminary register case if he finds that the charge sheet filed by the police or a private complaint prima facie disclose offences which are triable by a Court of Session. In the present case the charge sheet prima facie discloses an offence punishable under Sec.3(1)(x) of the Act which is exclusively triable by a court of session i.e. the concerned special Court under the Act for Krishna District within which the present JFCM Court is situated. Consequently the other offences under the IPC also become triable along with the above offence under the Act as all of them are said to have committed in the course of same transaction. The procedural law under the Cr.P.C regarding committal of cases to sessions division or a court of session requires that the Magistrate should first take cognizance of the case disclosing offences triable by a court of session as a PRC and then commit it if he finds in the subsequent enquiry that the case should be committed to the court of session as laid down in Sec.209 Cr.P.C. 10. From the above legal position it follows that the contention of the counsel for petitioners that JFCM cannot take cognizance of the case cannot be accepted. The word cognizance connotes that the Magistrate should first examine the matter and find out whether the case can be tried by him or by a court of session. This act of Magistrate in taking up the matter for that examination can be said to be taking cognizance of the matter by the Magistrate for the above purpose. Thus the above contention of the petitioners counsel cannot be accepted. After the Magistrate commits the matter to the Court of Session, it will take cognizance of the case at its end and deal with it in accordance with law. 11. The other plea raised under the above contention is that the JFCM was not correct in straightway issuing NBWs. It may be noted that the offence under Sec.3(1)(x) of the Act is punishable with a minimum imprisonment of six months the maximum extending upto five years and with fine. Thus it is clear that this offence has to be treated as a warrant case as that expression is defined in Sec.2(x) of Cr.P.C. Now under Sec.204(1)(b) Cr.P.C a Magistrate can straightaway issue a warrant in a warrant case after taking cognizance of the offences. 12. Now the expression “warrant” may cover both a bailable warrant and also a non-bailable warrant. The learned counsel for the petitioners relied upon a decision of our Supreme Court given in OMWATI vs. STATE OF U.P.[1] to show that a non-bailable warrant cannot be issued straightaway. This was a case where a High Court issued a non-bailable warrant for arrest of the appellant before it in a criminal appeal. In that case the appellant before the High Court was not the accused but he or she was the complainant who preferred that appeal against an acquittal. It was in that situation the Supreme Court faulted with the High Court. Hence the said decision is not applicable here. In VIDAVALURU BALARAMAIAH vs STATE OF AP[2] this Court held that in a warrant case if prima facie case is made out the Magistrate may issue a non-bailable warrant straightaway. This decision also supports the order of the JFCM as the allegations in the charge sheet show a prima facie case. 13. In the present case it is true that the petitioners were not arrested. In the earlier Criminal Petition No.6152 of 2010 this Court while refusing to quash the FIR observed that the petitioners may not be arrested till charge sheet is filed indicating that they can be arrested after filing the charge sheet. The police did not take steps to arrest the petitioners but simply filed the charge sheet mentioning about the above order in Criminal Petition No.6152 of 2010. In these circumstances and having regard to the power of a Magistrate to issue an NBW also in the first instance in a warrant case, it cannot be said that the JFCM was not justified in issuing the NBWs. 14. Accordingly for the aforesaid reasons all the contentions raised on behalf of the petitioners are rejected and this petition is dismissed. ______________________ N. RAVI SHANKAR, J 29th April 2011 CVRK [1] (2004) 4 SCC 425 [2] 2003 (1) ALT (Cri) 420 = 2003 (1) ALD (Cri) 543