IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. No. 159/2009 Judgment reserved on 15.9.2010 Date of decision: 22. 9.2010 Sh. Ravinder Kumar ….Petitioner Versus State of H.P. and another ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the Petitioner : Mr. Atul Jhingan, Advocate. For respondents : Mr. J. S. Rana, Assistant Advocate General, for respondent No. 1. Mr. Dinesh Sharma, Advocate, vice Mr. Subhash Sharma, Advocate for respondent No. 2. Surinder Singh, J. By means of the present petition preferred under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, petitioner has sought, quashing of the complaint in case No. 2 of 2009 before the Human Rights Court i.e. Sessions Judge, Una, filed by respondent No. 2 against the petitioner 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - and four others belonging to the same family under “The Protection of Human Rights Act, 1993”, in short the ‘Act’. 2. The petitioner felt aggrieved by the following order passed by the court below, taking cognizance of the matter, under the act: “18.9.2009 Present: Sh. Dinesh Chander Sharma, Advocate, for the complainant. Statement of the complainant recorded. ORDER: The complainant had instituted a complaint of violation of human rights of his daughter Ms. Preeti Sharma against the accused persons. The daughter of the complainant had done M.Sc. B. Ed. The complainant had performed the marriage of his daughter with the accused person No. 1 on 28.4.2007 at Chhabra Farm House, New Delhi. He had spent a sum of Rs.15 lakh approximate on the marriage of his daughter. After her marriage, Ms. Preeti Sharma had started residing with her husband (accused person No.1). The accused persons No.2 to 5 are related to the accused persons No.1. The accused persons had not treated Ms. Preeti Sharma well with the result she had been taken ill. Ms. Preeti Sharma had visited her parents on 15.10.2007 and had stayed with them till 30.10.2007. Ms. Preeti Sharma had exhibited development of mental depression. The complainant had taken his daughter to the house of his relative Niranjan Sharma. Ms. Preeti Sharma had - 3 - been medically examined and was found suffering from mental depression. The accused persons had asked the complainant to take his daughter to the house of her husband. Accordingly Ms. Preeti Sharma had been taken to the house of the accused persons. The accused persons had not been permitting Ms. Preeti Sharma to contact telephonically or otherwise her parents. In July, 2008 the brother of Ms. Preeti Sharma had visited the accused persons 1 to 5. The accused persons 1 to 5 did not allow the son of the complainant to meet his daughter. On 13.9.2008 Ms. Preeti Sharma had reached the house of her parents alone. She was physically and mentally weak and could not even walk. Her bag was checked and was found containing copy of order dated 20.5.2008 passed by the ADJ, Rohini Courts, New Delhi. The jewellary of Ms. Preeti Sharma had been snatched by the accused persons. The accused persons had indicated false address of Ms. Preeti Sharma with a view to obtain a collusive decree of divorce with alleged mutual consent. Ms. Preeti Sharma had informed her parents that the accused persons had physically and mentally tormented her and had robbed her of jewellary. She was directed to stay with offer of job at Chandigarh in July-August and had been dumped at the house of her parents in September, 2008. The complainant had got his daughter treated but she had suddenly died on 13.11.2008. The complainant says - 4 - that the accused persons had committed violation of human rights of life, liberty and dignity of his daughter. After taking into consideration the complaint, and the statement of the complainant I find good grounds to proceed against the accused persons for violation of human rights. Issue bailable warrants in the sum of Rs.5000/- each to the accused persons returnable for 6.11.2009.” 3. The challenge in this petition has been made by the petitioner on the ground that the court below could not have taken the cognizance of the matter directly and that too the petitioner and other co-accused could not have been summoned without specifying the offence and further that it also lacks the territorial jurisdiction. 4. I have heard the learned counsel for the parties and have carefully gone through the record. 5. Section 2 (e) of the Act provides for creation of “Human Rights Courts” specified under Section 30 of the Act. 6. Whereas, Section 30 of the Act reads as under:- - 5 - “30. Human Rights Courts.- For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences: Provided that nothing in this section shall apply if- (a) a Court of Session is already specified as a special Court; or (b) a special court is already constituted, for such offences under any other law for the time being in force.” 7. “Human Rights” have been defined under clause (d) of Section 2 which means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International covenants and enforceable by the Courts in India. The courts aforesaid have been created for providing speedy trial of offences arising out of the violation of the human rights. The offences have not been defined under the Act. The word “offence” as per clause (n) of Section 2 of the Code of Criminal procedure, 1973 means any act or omission made punishable by any law for the time being in force etc. Various Chapters of the Indian Penal Code (45 of 1860) makes punishable the offences effecting - 6 - human body religion, public health, decency and morals punishable there-under, which also includes the “cruelty” punishable under Section 498-A Indian Penal Code and dowry deaths etc. The hierarchy of the Courts has been provided in the Code, for fresh trial of offences and there is a provision for revision and appeals etc. but I failed to find from the Protection of ‘Human Rights Act’ what are the offences arising out of the violation of the “human rights” which are offences exclusively triable by the “Human Rights Courts” under the Act. 8. The notification dated 25th September, 1998 issued by the H.P. Government was published on 17.10.1998, creating “Human Rights Court” in every district in the State, but, it also does not specify the offences which come within the purview of the said Courts for its trial and punishment therefar. 9. Further a detailed procedure for trial of the offence by the Magistrate and the Court of Sessions is provided under the Code of Criminal Procedure 1973. Whereas, Section 193 of the Code is a bar to the Court of Sessions to take - 7 - direct cognizance of the offences, which reads as under:- “193 Cognizance of offences by Courts of Session.- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committee to it by a Magistrate under this Code.” 10. It has not been expressly provided either by the Code of Criminal procedure or the ‘Protection of the Human Rights Act’ that the ‘Human Rights Court’ which a ‘Court of Sessions’ can take the cognizance directly but even for that their must be ‘an offence’ arising out of the human rights violation. Even that apart, the Court of Sessions exercising powers of ‘Human Rights Courts’ in my opinion, is not competent to take direct cognizance of the offence. 11. Shri Dinesh Sharma, learned counsel for respondent No. 3 forcefully argued that the Court of Session is a Special Court created under Section 30 of the Act and since it is a Special Court, therefore, direct cognizance of - 8 - any such offence without the case being committed to that Court, is permissible. 12. I have examined the case from this angle also. Before taking the cognizance by any court the complaint must disclose the commission of an offence and it should also be spelt out in the cognizance order. In the instant case both these elements are absent. 13. It is quite understandable that there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, Government has been reviewing the existing laws, procedures and system of administration of justice; with a view to bringing about greater accountability and transparency in them and devising efficient and effective methods of dealing with the situation. India being a party to the said covenants, the President of India promulgated the Protection of Human Rights Ordinance, 1993 under Article 123 of the Constitution of India to provide for the constitution of a ‘National Human Rights - 9 - Commission', State Human Rights Commissions in States and ‘Human Rights Courts’ for better protection of ‘human rights’ and for matters connected therewith or incidental thereto. 14. While constituting the Human Rights Court by the State Government or in the act itself, it should have been made clear as to what are the offences which would fall within the cognizance of such courts and what is the punishment provided therefar, or that the offences which are punishable in any other Central or State enactments would come within the purview of such courts. In absence of this I do not think that the legislature intended to create parallel jurisdiction. Even if it was so, then it should have been clarified or at least specified in the notification whereby such courts were created. 15. In so far as the taking of the direct cognizance of the cases even under the Act is concerned for that I shall refer almost a similar provision in The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 with respect to creation of the Special - 10 - Courts as provided in Chapter IV under Section 14 reproduced below, with the same objective in mind as that of the ‘Protection Of Human Rights Act’ i.e. to provide speedy trial of the offences defined there under which reads:- “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 the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act.” 16. Although, Section 30 of the Act and 14 above are verbatim, yet the difference between ‘the Protection of Human Rights Act’ and ‘the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989’ is that the former did not specify the provisions under which such offences are punishable and to be exclusively tried by the Human Rights Courts but in the later, Act itself provides for the offences and makes the provision for its punishment. 17. In Gangula Ashok and another versus State of Andhra Pradesh 2000 Cri.L.J 819 the apex court examined the matter with reference to the offences punishable under the Scheduled Castes and the Scheduled Tribes - 11 - (Prevention of Atrocities) Act, 1989 vis-à-vis Section 193 of the Code of Criminal procedure. Whether the Special Courts specified under the Act can take cognizance of any offence mentioned therein without the case being committed to that court. It was held that the special Court under the said Act is essentially a Court of Sessions 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 of Criminal Procedure. In other words the complaint or a charge sheet cannot straightway be laid before the Special Court under the Act. After committal of the case, it is for the Special Court to decide regarding the action to be taken next, after hearing both the parties, as provided under Section 227 of the Code. It was also held that particular Court of Sessions, even after being specified as a Special Court, would continue to be essentially a Court of Sessions 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 - 12 - be conducted only in the manner provided in Chapter XVIII of the Criminal Procedure Code which contains fascicules of provisions for “trial before a Court of Session”. Section 193 of the Code has to be understood in the aforesaid back drop. 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 to it by a magistrate”, as provided in the Code. Neither in the Code nor in the Act there is any provision whatsoever, not even by implication, that 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. If that be so, there is no reason to think that the charge- sheet or a complaint can straightway be filed before such Special Court for offences under the Act. Neither Section 4 nor can Section 5 of the Code be brought in aid for supporting the view that the Court of Session specified under the Act can obviate the interdict contained in - 13 - Section 193 of the Code as 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. 18. In Vidyadharan versus State of Kerala (2004) 1 SCC 215 the same principle of law was reiterated by the three judges of the apex court. 19. Therefore, applying the above principle of law and interpreting Section 30 of the Act, I feel the Court of Sessions notified as Human Rights Court for trial of offences is essentially a Court of Sessions. It may only take cognizance of the offence, the omissions or commission whereof is punishable under the law with respect to the violation of human rights if specified, when the case is committed to it by the Magistrate in accordance with the provision of the Code. A complaint or a charge sheet cannot straightway be laid before the Human Rights Court under the Act. 20. The Court of Sessions in the instant case has acted as one of the original jurisdiction and the requirement of Section 193 of the Code was not met. The cognizance order also does not specify - 14 - the offence(s) under which the petitioner and his co-accused were summoned. 21. Therefore, for the foregoing reasons taking of the cognizance without specifying the offence, by the Human Rights Court below is also without jurisdiction. 22. Further on examining the allegations in the complaint, I also find that the learned trial Court lacks territorial jurisdiction to try and hear the matter, because no part of any offence and of a consequence thereof, has ensued within its jurisdiction. In other words the consequences must be such a fact which has to be proved to establish the offence. If the offence is complete in itself by reason of the act being done and the consequence is mere a result of it which is not necessary for completion of the offence, even then the lower court has no territorial jurisdiction. If the complaint is seen as a whole, if any offence is made out that was within the jurisdiction of Delhi Courts and not falling within the jurisdiction of Una District or any other part of the State, therefore the cognizance taken by the trial Court is also held without any territorial jurisdiction. - 15 - 23. Thus for the reason aforesaid, the impugned order dated 18.9.2009 in case No. 2 of 2009 passed by the learned trial Court, in my opinion, is abuse of process and is accordingly set aside. Consequently, the petition is allowed. The complaint be returned to respondent No.2 complainant as per procedure. He is left at liberty to seek redressal from any other court/forum, of competent jurisdiction, if permissible under the law. September 22 , 2010 (Surinder Singh), (cm) Judge