Madras High Court
7. In The Light Of The Judgment Of This ... vs . State Of M.P. [2012 (4) Scc 516]. ... on 16 October, 2014
Author: C.T. Selvam
Bench: C.T. Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.10.2014 CORAM: THE HONOURABLE MR. JUSTICE C.T. SELVAM Crl.R.C.No.469 of 2011 For Referring Officer : Mr.M.Mohammed Riyaz, Government Advocate (Crl.side) O R D E R
This reference has been occasioned by an order passed by learned II Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur, in S.C.No.30 of 2000 on 05.10.2001. This Court proceeds to inform the basic case, progress therein, the order, explains the error therein, reproduces the points of reference and answers the same.
2. The prosecution case was that the accused were the residents of Akkalur village and the deceased was a resident of Pattamangal Village. The deceased obtained fishing rights over a lake at Nachikulam. When the deceased along with P.W.1 went to Nachikulam to reap fish on 06.05.1997, they were informed that the accused had already harvested the same. On the same day, the accused picked up a quarrel with the deceased and assaulted him. On 07.05.1997, the deceased and P.W.1 informed the Village head of Akkalur village, who asked them to come the next day since the accused were not available in the village. Thereafter, when they were returning to their village at about 07.00 p.m., the accused waylaid the deceased and killed him. The allegation against A1 is that he, using a knife, stabbed the deceased on his chest while A2 caught hold of the deceased. A case was registered in Crime No.814 of 1997 on the file of Mayiladuthurai Police Station for offences u/s.341, 302 IPC and Section 3(2)(v) of the The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act. Upon completion of investigation, a charge sheet informing commission of offences u/s.341, 302 r/w 34 IPC and 3(2)(v) of the The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, was filed.
3. Learned Judicial Magistrate I, Mayiladuthurai, committed the matter for trial to learned II Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur. The case was tried in S.C.No.30 of 2000 by learned II Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur. Of the two accused, the first was charged of offences u/s.302 IPC and section 3(2)(v) of the The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act while the second was charged for offences u/s.341, 302 r/w 34 IPC and section 3(2)(v) of the The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act.
4. The prosecution examined 12 witnesses and marked 19 exhibits and 6 material objects. None were examined on behalf of the defence nor were any exhibits marked. On questioning under Section 313 Cr.P.C., the accused denied the charges.
5. After hearing the arguments advanced by learned Public Prosecutor and learned counsel for defence, learned II Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur, passed an order on 05.10.2001. Therein, he informed thus:
9. The learned counsel for the accused questioned the correctness of the framing of charge under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by this Court. As per the averments of the complaint (Ex.P1), just before the alleged incident of stabbing, the 1st accused alleged to have questioned deceased Anbazhagan in a filthy language in respect of taking of money from the belt (MO.6) of deceased Anbazhagan and there was no intentional insult by calling any caste name. It is held by his Lordship in ELABI @ MURUGESAN V. STATE BY INSPECTOR OF POLICE, KUTHANALLUR POLICE STATION, THIRUVARUR DISTRICT (2001 (1) CTC 721) as follows: - The Andhra Pradesh High Court pointed out that the Section provides enhanced punishment and when the punishment under Section.302 prescribed by law itself is for death or imprisonment for life, addition of charge under section 3(2)(v) of the Act would be redundant. I am in respectful agreement with the view expressed by the Andhara Pradesh High Court. It cannot be said that when a person is punishable with death sentence being one coming under the class of punishment for a term of ten years or more, then instead of death sentence, the life sentence should be imposed. That would frustrate the very purpose of the provision, when the case is charged of an offence under Section.302 IPC (2 counts), if the charge is proved, the sentence that can be imposed on him is either death sentence or life sentence. When that is the case, it cannot be said that provisions of Section.3(2)(v) of the Act would arise. Infact, the Andhra Pradesh High Court has pointed out in Referring Officer v. Police Station, Khammam, cited supra as follows:-
The object of the provisions under S.3(2)(v) is to provide for enhanced punishment in regard to offence punishable under IPC with imprisonment for a term of ten years or more if such offence is committed on the ground that the victim is a member of Scheduled Caste or Scheduled Tribe. Where the punishment of not less than imprisonment for life and higher sentence i.e. death sentence is provided for in respect of offences such as the one under Section.302 IPC, the question of applying clause (v) of Section.3(2) does not arise. I hold that the no charge under Section.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, would arise and the learned Second Additional District and Sessions Judge, Thanjavur would avoid framing of charge under section.3(2)(v) of the Act at the time of framing of charges.
10. In the present case charge under Section.3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, was already framed and trial was also conducted in respect of that charge. As per the findings given by the Hon'ble High Court, Madras in the case law referred above the 1st accused is discharged of the offence under Section.3(2)(v) of SC/ST (POA) Act.
11. After the discharge of the 1st accused of the offence under Section.3(2)(v) of SC/ST Act, both the accused stand charged for the offences under Section.302 and 341 IPC only. But this Court has no territorial jurisdiction to try the offences u/s.302 and 341 IPC alone, since this is a Special Court constituted to try the offences arising under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Hence, the entire case records and material objects are hereby transmitted to the Judicial Magistrate No.I, Mayiladuthurai for committal of the case afresh to proper Sessions Court having territorial jurisdiction to try the case for the offences under Sections.302 and 341 IPC. Both the accused are directed to appear before the Judicial Magistrate No.I, Mayiladuthurai on 5.11.2001 at 10.00 a.m.
6. The contention of the defence has been that the offence of murder also of which the accused stood charged attracted a sentence either of death or imprisonment for life. Section 3(2)(v) of the The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act contemplates enhanced punishment of imprisonment for life where the offence committed is punishable under the Indian Penal Code for a period of 10 years or more. Therefore, when the offence of murder punishable under the IPC attracted, in the least, imprisonment for life and could extend even to death, no occasion for enhancement of sentence to imprisonment for life would arise and hence Section 3(2)(v) of the The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act would have no application. The committing Court could not have committed the case for trial by a Special Court constituted under The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act but ought to have committed the case for trial before the Sessions Court having territorial jurisdiction. In other words, following the normal course, learned Judicial Magistrate I, Mayiladuthurai, ought to have committed the case to the District and Sessions Judge, Nagapattinam, instead of to the Special Court, Thanjavur.
7. In the light of the judgment of this Court in Elabi @ Murugesan v. State by Inspector of Police, Kuthanallur Police Station, Thiruvarur District [2001 (1) CTC 721] with which this Court records its respectful agreement, the contention is right. That in itself automatically cannot vitiate the proceedings in the case. The position is well-informed in the decision of the Apex Court in Rattiram and others vs. State of M.P. [2012 (4) SCC 516]. Paragraph Nos.62, 63 and 64 of such judgment read thus:
62. We have referred to aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused (quaere a victim). Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple-pie order in carrying out the adjective law, would only be sound and fury signifying nothing.
63. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice.
64. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the vicitm. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim's right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.
8. The law on the subject stands made clear - 'the collective right of society as well as the right of victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice had been caused to him owing to the procedural error in conduct of trial.' In the instant case, the trial of the case by learned II Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur, only can be said to be procedurally erroneous inasmuch as such Judge well was competent to try a charge u/s.302 IPC.
9. In the instant case, no objection was raised either at the stage of committal or at the time of framing of charges or even during the conduct of trial. It is only in the course of arguments that the defence contention has been raised. A reading of the order of the Court below reveals that it has not even been the defence case that failure of justice or prejudice to the accused has been occasioned. The contention, having been raised at the fag end of proceedings and in the absence of any failure of justice or prejudice caused to the accused, summarily ought to have been rejected.
10. Chapter XVII of the Criminal Procedure Code deals with 'The Charge'. Chapter XVII (B) comprising Sections 218 to 224 provides for 'Joinder of charges'. On the facts of this particular case, provisions attracted would be 220(1) and (3) of Chapter XVII (B) of the Criminal Procedure Code. The same read thus:
220. Trial for more than one offence. - (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
11. It is to be noticed that provision is made for charge and trial of more than one offence at one trial. The finding thereupon is only a consequence. The finding that a charge for one of the offences stands wrongly framed or that an offence alleged stands not attracted or committed cannot undo the right of Court to render its findings on the other charges/offences.
12. Sections 462 and 465 of the Criminal Procedure Code read thus:
462.Proceedings in wrong place. - No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
465.Finding or sentence when reversible by reason of error, omission or irregularity.- (1) Subject to the provisions hereinbefore contained, no finding, sentence of order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error; or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
13. A concomitant reading of the two provisions would inform that unless a failure of justice has been occasioned and even when so, objection has been taken at an early instance, the finding of a trial Court would not be interfered with. This Court is conscious that Sections 462 and 465 Cr.P.C. deal with proceedings before appellate/revisional Courts. It is the extension of the principle that is found in Rattiram and others v. State of Madhya Pradesh [2012 (4) SCC 516].
14. The points of reference and answers thereto are as follows:
Question Nos.1 and 2:
1.Whether the II Additional Sessions Judge, Thanjavur, in dealing with the case as S.C.No.30 of 2000 on his file is justified in discharging the 1st accused of the charge u/s.3(2)(v) of SC/ST Act, 1989, after the framing of charge?
2.Whether the II Additional Sessions Judge, Thanjavur, in not having discharged the 2nd accused of the charge u/s.3(2)(v) of the SC/ST Act, 1989, despite a specific charge was framed against him for that offence, is justified in holding that his Court has no territorial jurisdiction to proceed with the case?
Answer:
For the reasons informed above, the order of discharge of first accused is inappropriate. Upon finding that the offence u/s.3(2)(v) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, is not attracted in the circumstances of the case, an order of acquittal regards such charge ought to have been passed. A1 was charged for offences u/s.302 IPC and section 3(2)(v) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act and A2 was charged for offences u/s.341, 302 r/w 34 IPC and section 3(2)(v) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act. Thus, as offences of which both accused stands charged attract a sentence of death no charge u/s.3(2)(v) of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, ought to have been framed against them. When wrongly charged, the trial Court ought to render a finding of acquittal in respect of such charges and for the reasons explained above. Again, as explained above, the finding of learned II Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur, of his having no territorial jurisdiction, in the circumstances of the case is misplaced. When so construed no answer to Question No.2 is necessary.
Question Nos.3 and 4:
3.Whether the action of the II Additional Sessions Judge, Thanjavur, in transmitting the records to the Judicial Magistrate I, Mayiladuthurai for committal afresh is sustainable in law?
4.Whether the Judicial Magistrate I, Mayiladuthurai, can commit the case afresh when especially his earlier committal order has not been set aside or quashed by a competent Court?
Answer:
In the instant case, the action in transmitting the records for committal afresh is not sustainable. However, in an appropriate case, where a Sessions Judge is informed that the committal of case to him is erroneous and he finds himself in agreement with such contention, he may record his reasons therefor and re-transmit the records to the Judicial Magistrate concerned for fresh committal proceedings. As indicated above, the stage at which objections are raised is material.
Question Nos.5, 6 and 7:
5.Whether the Judicial Magistrate I, Mayiladuthurai, can commit the case afresh when the examination of all the witnesses and the entire process of trial has been over in this case before the II Additional Sessions Judge, Thanjavur?
6.Whether the Judicial Magistrate I, Mayiladuthurai, can commit the case afresh when the charges framed by the II Additional Sessions Judge, Thanjavur u/s.302 and 342 IPC against the 1st accused and u/s.302 and 341 IPC and Section 3(2)(v) of SC/ST Act against the 2nd accused have not been set aside or quashed by a court competent to do so?
7.Whether the learned II Additional Sessions Judge, on a concluded trial of the case, having discharged the 1st accused of the offence u/s.3(2)(v) of SC/ST Act, could transmit the records ordering for a committal afresh with regard to other offences to a court having territorial jurisdiction to try the same?
Answer:
In the light of the findings of this Court to the effect that the procedure adopted by learned II Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur, is erroneous, question Nos.5, 6 and 7 do not call for an answer.
15. Reference accordingly is answered.
16. Towards informing the manner in which the case on hand is to be dealt with, this Court observes thus:
The trial in S.C.No.30 of 2000, has been conducted, besides for offence u/s.3(2)(v) of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, charge for which has been found erroneous, also for offences u/s.341 and 302 r/w 34 IPC. Such trial having reached its conclusive stage, the trial Court ought to have heard arguments and rendered its findings on the other offences. A failure of justice has been occasioned owing to the trial Court not having done so. As explained by the Apex Court, justice needs to be done not only to the accused but also to Society and the victim. Towards such end, this Court directs learned II Additional Sessions Judge, Thanjavur, to issue notice to the prosecution as also the accused, hear arguments of either side, peruse the records and materials available and render its findings in respect of charges u/s.302 IPC against A1 and u/s.341, 302 r/w 34 IPC against A2. Considering the enormous delay occasioned since 2001, the trial Court shall render its findings within a period of three months from the date of receipt of this order.
17. In keeping with the decision of this Court in Elabi @ Murugesan v. State by Inspector of Police, Kuthanallur Police Station, Thiruvarur District [2001 (1) CTC 721], it becomes necessary for the Magistrates in the State to be informed that there can be no committal for offence u/s.3(2)(v) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, where an offence attracts a punishment of death or imprisonment for life under the Indian Penal Code.
18. This Court considers it necessary and accordingly, directs that wherever objections to jurisdiction of a Court otherwise competent as per the First Schedule of the Code of Criminal Procedure, 1973, are raised, the same may be considered only when such objections are raised at or before framing of charges in the case. This direction is to be diligently followed by all Courts below both in the interests of justice as also towards ensuring uniformity of procedure.
Registry is directed to forward a copy of this order to all Courts below in the State.
16.10.2014 Index: Yes/No Internet: Yes/No gm C.T. SELVAM J., gm Crl.R.C.No.469 of 2011 16.10.2014