M.A. KUTTAPPAN

E. KRlSHNAN NAY ANAR AND ANR.

FEBRUARY 26, 2004

[N. SANTOSH HEGDE AND B.P. SINGH, JJ.] .

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; Section 3(J)(x)/Code of Criminal Procedure, 1973; Section 482:

. Complaint in the Court of Special Judge-DerogatOJ)' remarks against a Scheduled Caste ML.A. allegedly made by the Chief Minister in full view of public-Held: offence committed under the provisions of the Act-issuance of process to accused summoning him to stand trial-Challenge to-:-Order quashed by High Court holding that no offence was made out-On appeal; D Held: Since Special Judge had no jurisdiction to entertain a complaint directly, he erred in taking cognizance of the offence and issuing process without committal of the case for trial by a competent Magistrate-Hence, order set aside-However, appellant could file a complaint bP-fore a competent Magistrate-The Magistrate shall consider the matter in accordance with law uninfluenced by the earlier observations of the Special Court/High Court/ E Supreme Court-Protection of Civil Rights Act, 1955; Section 7(J)(d).

Appellant - an MLA, belonging to a Scheduled Caste, filed a complaint in the Court of Special Judge alleging that Respondent No.1, the then Chief Minister of the State of Kerala, had made derogatory remarks against him F in front of the public, thereby encouraged the audience to practise untouchability. The Special Judge came to the finding that the offence under relevant provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and the protection of Civil Rights Act was made out He took cognizance of the offence and issued process summoning the accused to stand trial. The order was challenged by Respondent No.1. High Court G quashed the order holding that no offence was made out under either of the two Acts. Hence, the present appeal.

It was contended by Respondent No.1 that in the absence of an order of committal made by a competent Magistrate committing the accused to stand trial before the Session Court, the Court/Special Judge, who exercise 668

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M.A. KUTTAPPAN v. E. KRISHNANNAYANAR 669

powers of a Sessions Court as per provisions of the Criminal Procedure Code A had no jurisdiction to try an offence under the Act.

Dismissing the appeal, the Court

HELD: 1. The Special Judge had no jurisdiction to entertain the complaint directly and to issue process after taking cognizance without the B case being committed to it by a competent Magistr:-tP.. The question is no longer res integra. The Special Judge erred in entertaining a complaint filed before it and in issuing process after taking cognizance without the case being committed to it for trial by a competent Magistrate. Though the High Court has quashed the proceeding on a different ground altogether, the impugned C order of the Special Judge deserves to be set aside so far as it related to its taking cognizance of an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and issuing process on the basis of the complaint directly made before it by the complainant, ordered accordingly.

[674-B-D)

Gangula Ashok and Anr. v. State of Andhra Pradesh, (2000) 2 SCC 504 and Vidyadharan v. State of Kera/a, JT (2003) 9 SC 89, relied on.

2. The High Court was right in coming to the conclusion that Section 7(l)(d) of the Protection of Civil Rights Act is not attracted in the facts and circumstances of the case. Assuming, respondent No.1 uttered the words E imputed to him, by no stretch of imagination it can be concluded that by uttering those words he had either insulted or attempted to insult the appellant on the ground ofuntouchability. There was no justification for the submission that the words allegedly uttered by respondent No.I encouraged his audience to practise untouchability or that respondent No.I practised untouchability.

However, it will be open to the appellant, if so advised, to file a complaint F before a competent Magistrate, who shall proceed to consider the matter in accordance with law uninfluenced by any observation made either by the Special judge or by the High Court or by this Court.

[674-G, E, F, H; 675-A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. G 450 of 1997.

From the Judgment and Order dated 21.2.1997 of the Kerala High Court in Cr!. M.C No. 2192 of 1996.

SUPREME COURT REPORTS

[2004] 2 S.C.R. - A Roy Abraham,-Himinder Lal for the Appellant..

Rajeev Dhawan, G. Prakash, Ms. Beena Prakash, Prasanth, Ramesh Babu M.R., Ms. Anupama Madanan and K.R. Sasiprabhu for the Respondents.

The Judgment of the Court was delivered by B

RP. SINGH, J. The appellant in this appeal by special leave is aggrieved by the order of the High Court ofKerala at. Emakulam in Cr!. M.C. No. 2192 of 1996 dated 21st February, 1997 whereby a learned Judge of the High Court whjle allowing the application filed under Section 482 of the Code of

c Criminal Procedure quashed the order of the Special Judge, Thalassery _,.., whereby he had taken congnizance of the offences under Section 3(l){x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atroci, ties) Act, 1989 -(hereinafter referred to as the '1989 Act' and Section 7 (I)( d) of the.

Protection of Civil Rights Act, 1955. The High Court hld that none of the offences-above mentioned were made out on the basis of the complaint and D the material placed before the learned Special Judge.

In view of the order, :which we propose to make, it is neither necessary nor advisable to refer to the facts of the case in detail lest it may prejudice the case of the parties in any proceedings in future. However it is necessary to briefly recapitulate the broad facts which give rise to the instant appeal.

E The appellant herein, the complainant, claiming to be a Memb'.!r of the Kerala Legislative Assembly and belonging to a Scheduled Caste known as 'Pathiyan' and practicing as a doctor by profession owing allegiance to the Indian National Congress (I) filed a complaint in_ the Court of the Special

Judge for the trial of offences under Act 33 of 1989 at. Thalassery. In his complaint he alleged that respondentNo. l belongs to Nair community, which is not a. scheduled .caste, was a prominent leader of the Communist Party of -- India (Marxists). He at the relevant time held the office of Chief Minister of the State of Kerala and was contesting bye-election to the Kerala Legislative Assembly from the Thalassery Assembly Constituency. A Convention of the

G Left Democratic Front was convened on September 20, 1996 in the evening at the Town Bank Auditorium, Thalassery in which respondent No. I made a speech wherein he made certain disparaging observations wilfully and deliberately emphasizing the fact that the complainant belongs to a lower and ~

inferior category of MLA being a member of a scheduled caste. Respondent

No. I emphasised the fact that the appellant was a Harijan and made derogatory H remarks about the complainant. This was done in full view of the public

M.A.KUTTAPPAN v.E.KRISHNANNAYANAR[SINGH, J.] 671

assembled in the Auditorium. Respondent No. I is alleged to have stated as A follows :-

"There is an MLA. Kuttappan, that Harijan MLA, he climbed over the table and was dancing. ls this the democratic manners of Antony?"

This was the statement attributed to respondent No. l by witness No. I B examined on behalf of the appellant. According to the complainant respondent No. I stated :-

"the other thing, that Harijan, one Kuttappan, he was dancing on the table".

Though there is a slight variance about the exact words used by respondent No. I, the statement was to this effect. c

The learned Special Judge on a consideration of the statement of the complainant on oath and the statements of two other witnesses examined before it, came to the conclusion that in the facts and circumstances of the D case, the commission of an offence under Section 3( I )(x) of the I 989 Act and under Section 7(1)(d) of the Protection of Civil Rights Act was made out.

He, therefore, took cognizance of the aforesaid offences and issued process summoning respondent No. I to stand trial.

The order of the Special Judge Thalassery was challenged by respondent E

No~ I before the High Court which by its impugned order quashed the order of the Special Judge taking cognizance, finding that no offence was made out under either of the two Acts. Aggrieved by the judgment and order of the High Court the appellant has preferrd this appeal by special leave. At the threshold counsel for respondent No. I submitted that the Court of Special F Judge constituted under the I989 Act had no jurisdiction to entertain the complaint, take cognizance and issue process against respondent No. I. Relying upon the decisions of this Court it was submitted that the Special Judge constituted for the trial of offences under the aforesaid 1989 Act could only exerCise the powers of a Session Court in accordance with the procedures laid down under the Code of Criminal Procedure. It was submitted that unless G an order of committal was made by a competent Magistrate committing the accused to stand trial before the Court of Session, the Session Judge had no jurisdiction to try an offence under the aforesaid Act. He had no jurisdiction even to entertain a complaint made before it under the aforesaid Act. Reliance was placed on two decisions of this Court in Gangula Ashok and Anr. v. H

A State of Andhra Pradesh, [2000] 2 sec 504 and Vidyadharan V. State of Kera/a : JT 2003 (9) SC 89. Counsel for the appellant did not dispute the factual position that the case had not been committe~ to the Special Judge for trial of respondent No. I and that the Special Judge entertained the complaint filed before it and issued process against respondent No. I.

B In Gangula Ashok and another (supra) a complaint had been lodged against the appellants before the police and after investigation the police filed a charge-sheet before the Special Judge which was designated as Special Court for trial of offences under the aforesaid Act. The Special Judge proceeded to frame a charge against the appellants which was challenged before the C High Court by them. A learned Judge of the High Court found that the procedure adopted by the Investigating Officer in filing the charge sheet before the Special Court was not in accordance with law and the Special Judge had no jurisdiction to take cognizance of any offence under the Act without the case having been committed to that Court. In this view of the

matter the learned Judge set aside the proceedings of the Special Court and D directed the charge sheet and the connected papers to be returned to the police officer concerned to present the same before a Judicial Magistrate of the First Class for the purpose of committal to the Special Court. The judgmnt

of the learned Judge was challenged before this Court and after an exhaustive consideration of the authorities on the subject and the statutory provisions, E this Court upheld the order of the High Court setting aside the proceeding initiated by the Special Court., though it did not approve of the directions given by the High Court that after committal of the case, the Special Court shall frame charge against the appellant. Obviously so, because it is for the Special Curt to decide regading the action to be taken next fter hearing the parties as provided under Section 227 oft.he Code of Criminal Procedure.

F NoticinK the provisions of Section 193 of the Code of Criminal Procedure

. and Section 14 of the 1989 Act this Court observed that the Act contemplated only the trial to be conducted by Special Court. The added reasons for specifying a Court of Session as a Special Court is to ensure speed for such trial. Thus the Court of Session is specified to conduct a trial and no other G court can conduct the trial of offences und.er the Act. The legislative intent was to ensure that the offences under the Act were tried by Special Court and Court of Session was specified as a Special Court under Section 14 of the 1989 Act. Even after being so specified , as a Special Court the Court of Session continues to be essentially a Court of ession and its designation as a pecial Court did not denude it of its character or even powers as a Court H of Session. The trial in such a Court can be conducted only in the manner

M.A. KUTTAPPAN v. E. KRISHNANNAYANAR [SINGH, J.] 673

provided in Chapter XVIII of the Code of Criminal Procedure which contains A a fasciculus of provisions for trial before a Court of Session. This Court then observed :-

"10. 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 offence as a court of original B juris.diction. It 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 of cognizance, and C the second is when any other law has provided differently in express language regarding taking cognizance of offences under such Jaw.

The word "expressly" which is employed in Section 193 denoting those exceptions is indicative ofthe 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 D 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.

11. Neither in the Code nor in the Act is there any provision whatsoever not even by implication that the specified Court of Ses.sion E (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 straight away be filed before such Special Court for offences under the Act. It can be discerned from the F hierarchical settings of criminal courts that the Court of Session is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which Magistrates have to do until the case is committed to the Court of Session."

The same view was reiterated in Vidyadharan (supra). This Court concluded by observing :-

"20. Hence, we have no doubt that a special c, ourt under the Act is essentially a court of session and it can take cognizance of te offence when the case is committed to it by the magistrate in accordance with H"

 , the provisions of the Code. In other words, a complaint or a chargesheet cannot straight away be. laid down before he special court under the Act. We are reiterating the view taken by this Court in Gangula Ashok and Anr. v. State of A.P., [2000] 2 SCC 504 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 of the Code were

not met."

In view of the aforesaid decisions of this Court it coµld not be contended before us that the Special Judge had jurisdiction to entertain the complaint C directly and to issue process after taking cognizance without the case being committed to it by a competent Magistrate. The question is no longer res integra and, therefore, it must be held that the learned Special Judge in the instant case erred in entertaining. a complaint filed before it and in issuing process after. taking cognizance without the case being committed to it for trial by .a competent Magistrate. Though the High Court has quashed the D proceeding on a different ground altogether, we are satisfied that the impugned . order of the Special Judge deservs to be set aside so far as it related to its taking cognizance of an.offence under the. 1989 Act, and issuing process on the basis of the complaint directly made before it by the complainant.

The next question which survives consideration is whether the learned E Special Judge was justified in taking cognizance under Section 7(1 )( d) of the

ProtectionofCivil Rights Act. The High Court held that the utterance imputed to respondent No.I did not attract the provisions of Section 7(1 )( d) of the Protection of Civil Rights Act. To attract the said provision it had to be shown that the words so uttered had the effect of insulting the appellant on F the ground of"untouchability" which is not the case. There was no justification

. for the submission that the words allegedly uttered by respondent No. I encouraged his audience to praetise untouchability or that respondent No. I practised untouchability. The appellant was neither insulted nor attempted to be insulted on the ground of untouchability~ Therefore, the provisions of Section 7(1)(d) of the Protection of Civil Rights Act were not attracted.

Learned counsel for the appellant did not advance any argument challenging the above finding of the High Court. We have also seriously considered the matter .and we are satisfied that the High Court wa_s right in coming to the conclusion that Section 7(1)(d) of the Protection of Civil Rights Act is not attracted m the facts and circumstances of this case.

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M.A. KUTT APP AN v. E. KRISHNAN NA YANAR [SINGH, J.] 675

Assuming; respondent No. I uttered the words i"mputed to him, by no stretch A of imagination it can be concluded that by uttering those words he either insulted or attempted to insult the appellant on the ground of untouchability.

In the result this appeal is dismissed. However, it will be open to the . appellant, if so advised, to file a complaint before a competent Magistrate who shall consider the complaint on its merit and then proceed in accordance B with law. The learned Special Court as well as the High Court have made certain observations touching on the merit of the controversy. We make it clear that in case a complaint is filed by the appellant before a competent Magistrate, he shall proceed to consider the matter in accordance with law uninfluenced by any observation made either by the learned Special Judge or C by the High Court. Nothing said in this judgment also shall be construed as expression of opinion on the merit of the case.

S.K.S.

Appeal dismissed.