Andhra HC (Pre-Telangana)
Referring Officer Rep. By State Of A.P. ... vs Shekar Nair @ Guru And Ors. on 23 April, 1999
Equivalent citations: 1999(3)ALT533, 1999(1)ALT(CRI)688
Bench: P. Venkatarama Reddi, R.M. Bapat
JUDGMENT
1. The learned Addl. Sessions Judge, Khammam invested with powers of Special Court constituted under Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act') made the reference under Section 395 (2) of the Code of Criminal Procedure and it is numbered as Crl.R.C. No. 905 and 1084 of 1996 on the file of High Court. The same learned Judge while working as Addl. Sessions Judge at Warangal who was also invested with the powers of Special Court under aforementioned Act had, while reiterating the same reasons, sought for quashing the proceedings at various stages in Sessions Case Nos. 3, 4 and 9 of 1996 (on the file of the Special Court under the Act). We will be dealing with that case i.e. Crl.R.C. No. 1084 of 1996 separately. The questions referred by the learned Sessions Judge in Crl.R.C. No. 905 of 1996 are:
(1) Whether the Special Court constituted under Section 14 of the Central Act XXXIII of 1989 is empowered and competent to take cognizance of and to try, any offence other than an offence under the said Act with which the accused may, under the Criminal Procedure Code, be charged at the same trial.
(2) Whether the Hon'ble High Court itself had the power and is competent to vest and if so, the Circular order in Roc. No. 2582/SO/91, dated 12-2-1992 of Hon'ble High Court, issued in exercise of its powers under Section 407 of the Criminal Procedure Code vests such non-territorial jurisdiction upon such Special Court as stated in High Court's Rc. No. 2137/E-1/94, dt. 4-9-1996;
(3) If the answer to Question Nos. 1 and 2 is 'no' what is the procedure to be adopted in respect of those cases pending trial (which were received by transfer from Special Court, Mahabubnagar) and those charge sheets pending consideration before this Court involving commission of an offence under both the Act and IPC (Special Minor Offences under the Act and Major Offences punishable under Sections 302, 307, 376, 354, IPC etc.,) both of which are committed during the course of same transaction;
Thus, the correct procedure to be followed by the Special Court constituted under the Act and the jurisdiction of the Special Court to try the offences punishable under the Indian Penal Code, committed in the course of the same transaction are the two questions of law on which the learned Presiding Officer of the Special Court has entertained a doubt and sought the decision of the High Court. The questions as to effect and validity of the Circulars Roc. No. 2582/SO/91/dt. 12-2-1992 and ROC. No. 2137/E-1/94, dated 4-9-1996 issued by the Court has also been raised in these reference cases.
2. In Criminal Revision Case No. 1084 of 1996, the learned Addl. Sessions Judge, Warangal acting as Judge for Special Court under the Act, Warangal seeks quashing of the proceedings in Session Case Nos. 3, 4 and 9 of 1996 which were transferred to that Court on the ground that the correct procedure was not followed by the transferring Court i.e. the Special Court at Mahabubnagar while taking cognizance of the offences and that the Special Court has no jurisdiction to try such offences by reason of the fact that the alleged acts do not attract the provisions of the Act and the Special Court should not have taken cognizance thereof.
3. When the references came up before our learned brother A. Hanumanthu. J. the learned Judge felt that the decision of the learned single Judge of this Court (V. Rajagopala Reddy, J.) in S. Madhava Reddy v. State of A.P. rep. by the Public Prosecutor reported in 1996 (1) ALT (Crl.) 452 (A.P.) was not correctly decided and that in view of the conflicting decisions of the various High Courts, it is desirable that a Division Bench or a Full Bench gives an authoritative pronouncement on the following legal questions:
(1) What is the procedure to be followed while taking cognizance of the offences by the Special Court, constituted under Section 14 of the Act:
(a) Whether it can take cognizance of the offences directly as a Court of original criminal jurisdiction without being committed by a Magistrate following the procedure laid down under Criminal Procedure Code.
(b) Whether it can take cognizance of the offences only on committal by a competent Magistrate Court following the procedure as laid down under Cr.P.C.
(2) Whether the direction in the Notification No. 2 in G.O.Ms. No. 10, Social Welfare (H) Department, dated: 7-2-1996 to the Presiding Officers of Special Courts "to receive, try and dispose of the cases filed under the Act" will vest the Special Court with the power to take cognizance of the offences under the Act directly without being committed under Section 193 Cr.P.C?
(3) Whether the provisions of Clause (v) of Sub-section (2) of Section 3 of the Act are attracted in the case of an offence under Section 302 I.P.C. which is punishable with death or imprisonment for life?
(4) Whether the provisions of Clause (v) of Sub-section (2) of Section 3 of the Act are attracted where an offence is committed against a person or property without knowing that such person is a member of the Scheduled Caste or Scheduled Tribe or such a property belongs to such a member, but comes to light subsequent to the commission of the offence that such person is a member of the Scheduled Caste or Scheduled Tribe?
(5) Whether the Special Court has got jurisdiction to try an offender who is a member of a Scheduled Caste or Scheduled Tribe when he commits an offence under the Act alongwith other offenders who are not members of the Scheduled Caste or Scheduled Tribe?
4. To the above questions may be added the question formulated by the learned Judge in para 17. That question is with regard to the jurisdiction of the Special Court to try the offences punishable under the Indian Penal Code along with the offences under the Act when both are committed in the course of the same transaction.
5. The learned Judge directed the Registry to place the papers before the Hon'ble Chief Justice for giving directions as regards the posting of the matters before the Division Bench/Full Bench. The Hon'ble Chief Justice directed the matters to be heard by this Division Bench.
6. On notice, the learned Addl. Advocate General Mr. Prakash Reddy has appeared and assisted the Court. The learned Addl. Public Prosecutor and Ms. Nanda, the Counsel appointed as amicus curiae also appeared and assisted the Court. We have also heard the arguments of Senior Counsel Sri Ella Reddy appearing for the petitioners in Crl.P. No. 1944 of 1998 and the senior Counsel Sri B. Tarakam, appearing for impleaded respondent (complainant), in the same case as the points raised therein are overlapping.
7. First, we will refer to the relevant provisions of the Act. As the preamble of the Act shows, it is meant to prevent the commission of offences and atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for trial of such offences and for the relief and rehabilitation of the victim of such offences and for matters connected therewith or incidental thereto. 'Atrocity' means an offence punishable under Section 3 - vide Section 2 (a). 'Special Court' means a Court of Session, specified as a Special Court in Section 14 - vide Section 2 (d). Section 14 of the Act reads as under:
"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 in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act."
8. Section 20 gives the Act an overriding effect over other laws. It reads as follows:
"Act to override other laws: Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law".
9. Section 6 of the Act makes the provisions of the IPC contained in Sections 34,149, Chapter III (Punishments), Chapter IV (General Exceptions), Chapter V (Abetment), Chapter V-A (Criminal Conspiracy) and Chapter XXIII (Attempts to commit offences) are made applicable so far as may be, for the purposes of the Act. It may be noted that the procedure to be followed by the Special Court in regard to the trial of offences or in regard to other stages preceding the trial are not set out in the Act.
10. As per the provisions of Section 14 of the Act, and after obtaining the consent of the Hon'ble Chief Justice of this Court, the Government issued G.O.Ms. No. 665 Home (Courts-A) Department, dated 14-11-1991, which reads as under:
NOTIFICATION In exercise of the powers conferred under Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act No. 33 of 1989), and in partial modification of the notification issued in G.O.Ms. No. 12, Social Welfare (H-1) dated 25th January, 1990 and published in the Andhra Pradesh Gazette, Part-I, Extraordinary dated the 30th January, 1990, the Government of Andhra Pradesh with the concurrence of the Chief Justice of the High Court of Andhra Pradesh, hereby specify that the three Courts of Session one each at Guntur, Chittoor and Mahabubnagar, sanctioned in G.O.Ms. No. 485, Home (Courts-A) Department, dated the 20th August, 1991 to be the Special Courts exclusively to try offences under the said Act as detailed below. The Special Courts shall normally sit at the places mentioned in Column No. 2 of the Table. They may however hold their sittings at any place within their jurisdiction having regard to the convenience of the parties and for other reasons like security and administrative exigencies.
TABLE
Sl No. Name of the Court Jurisdiction of the Court
1. Court of Special Judge for trial of Over the Districts of Guntur,
offences under the Scheduled Caste Prakasam and Nellore
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 at Guntur.
2. Court of Special Judge for trial of Over the Districts of Chittor,
offences under the Scheduled Castes Cuddapah, Anantapur and Kurnool.
and Schedule Tribes (Prevention of
Atrocities) Act, 1989 at Chittoor
3. Court of Special Judge for trial of Over the Districts of Adilabad,
offences under the Scheduled Castes Khammam, Karimnagar, Mahabub-
and Scheduled Tribes (Prevention of nagar, Medak, Nalgonda,
Atrocities) Act, 1989 at Mahabub- Nizamabad, Rangareddy and
nagar. Warangal.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)
Thereafter, the High Court of Andhra Pradesh issued a Circular in Roc. No. 2582/SO/91, dated 12-2-1992, which reads as under:
"By virtue of Government's Notification second cited, three Special Courts for trial of offences under SCs & STs. (Prevention of Atrocities) Act, 1989, were established at Guntur, Chittoor and Mahabubnagar exclusively to try the offences under the said Act within their jurisdiction over the districts mentioned in the reference second cited.
The High Court in exercise of the powers conferred under Section 407, Cr.P.C., 1973 be and hereby permits all the Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges of the concerned districts mentioned in column No. 3 of the Notification enclosed herewith straightaway to transfer the cases filed under SCs and STs (Prevention of Atrocities) Act, 1989 including those cases filed under IPC which are punishable with imprisonment for 10 years or more in which SCs & STs are complainants and the accused do not belong to SCs. or STs. to the concerned Special Courts for trial of offences under SCs and STs (Prevention of Atrocities) Act, 1989 for disposal according to law. The Special Judges for trial of offences under SCs. and STs (Prevention of Atrocities) Act, 1989 at Guntur, Chittoor and Mahabubnagar are hereby directed to receive all the cases that are transferred to them by the said Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges mentioned supra and dispose according to law".
11. Thereafter, basing upon the judgment of the Kerala High Court, the High Court issued a Circular Roc. No. 1240/SO/93 dated 30-9-1993 on administrative side and informed all the Special Courts to take cognizance of the offences under the Act following the procedure as laid down in the decision of Kerala High Court without insisting on the Magistrate to follow the committal procedure as laid down under Sections 207 to 209 of Criminal Procedure Code, 1973.
12. As already stated, the learned Additional Sessions Judge doubted the competency of the High Court to issue such circulars either in administrative capacity or in exercise of jurisdiction under Section 407, Cr.P.C.
13. In the year 1996, some changes were made in the constitution of Special Courts and consequently there was re-allocation of jurisdiction. The State Government through G.O.Ms. No. 10, Social Welfare (H) dt. 7-2-1996 notified that the Courts of Addl. District and Sessions Judges where only two Sessions Courts are functioning and all the I Addl. District and Sessions Judges' Courts where more than two Sessions Courts are functioning in the district, are designated as Special Courts for the trial of the offences under the Act. However, in the districts of Chittoor, Guntur and in the Metropolitan Sessions Division of Hyderabad, the re-designated Courts mentioned in Col. 2 of the Table in Notification No. I shall exercise the powers as Special Courts under the Act. These three Courts are:
(1) Special Judge for trial of offences under the Act-cum-IV Addl. District and Sessions Judge, Tirupati;
(2) The Court of Special Judge for the trial of the offences under the Act-cum-IV Addl. District and Sessions Court, Guntur; and (3) The Court of Special Judge for trial of the offences under the Act-cum-Addl. Judge, Family Court at Secunderabad.
14. It was further provided therein that the Presiding Officers of such Courts shall "receive, try and dispose of all the cases filed under the said Act arising from their respective areas". In pursuance of the said G.O., the High Court in Roc. No. 2137/E2/94, dated 26-2-1996, directed the Special Judges at Guntur, Chittoor and Mahabubnagar to transfer all the pending cases of different districts to the Addl. Sessions Judges and Addl. Metropolitan Sessions Judges who are empowered to try the cases under the Act as per the said G.O. and the Addl. Sessions Judges and Addl. Metropolitan Sessions Judges were also directed to receive the said cases. In pursuance of the said notification issued by the High Court on administrative side, the Special Court at Mahabubnagar, which had earlier jurisdiction over the Districts of Khammam and Warangal, transferred the pending charge-sheets relating to those districts to the Courts of Addl. Sessions Judges of Khammam and Warangal which have been specified as Special Courts for those districts and empowered to try the cases under the Act as per G.O.Ms. No. 10, dated 7-2-1996. Those charge-sheets were returned by the Addl. District Judge/ Special Court, Khammam with an endorsement that the concerned Police Officers should explain as to how the Special Court can try the offences under Indian Penal Code. Thereafter, the S.P., Khammam corresponded with the Registrar of High Court who in turn called for a report as to why the charge-sheets were returned in spite of earlier circulars. Then, the A.D.J., Khammam thought it fit to make the present reference.
15. In order to appreciate the issue involved in this case, it is necessary to go through some of the provisions of the Code of Criminal Procedure. The most important provision is Section 4. As per Sub-section (1) of Section 4, all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in the Code. Sub-section (2) reads as follows:
"All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence".
Section 4 has been neatly analysed by the Supreme Court in A.R. Antulay v. Ramdas Srinivas Nayak, in the following words:
"..........In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal Courts of various designations".
The next relevant provision is Section 5, which lays down that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
16. Section 9 provides for establishment of a Court of Session for every Sessions Division presided over by a Judge appointed by the High Court. The High Court may also appoint Addl. Sessions Judge and Asst. Sessions Judge to exercise jurisdiction in a Court of Session vide Section 9 (3).
17. Section 26 of Code of Criminal Procedure, which is part of Chapter III dealing with powers of the Courts reads as under:
"Courts by which offences are triable:
Subject to the other provisions of this Code-fa) any offence under the Indian Penal Code (45 of 1860) may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable;
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable".
18. On referring to these provisions of Cr.P.C. Sreedharan, J. of Kerala High Court in Re: Director General of Prosecution 1993 (1) ALT (Crl.) 52 (Ker,) = 1993 Crl.L.J. 760, rightly observed in para 6 as follows:
"The combined effect of the provisions of the Code referred to above is that all offences under the Indian Penal Code are to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. Insofar as offences under laws other than I.P.C. are concerned, the provisions of the Code apply in their full force subject to the specific or contrary provision made by the law under which those offences are to be investigated or tried. Where an enactment provides special procedure only for some matters, such procedure must govern those matters and in regard to other matters on which that enactment is silent, the provisions of the Code must be applied".
19. Referring to Sections 4 (2) and 5 of Cr.P.C., the Supreme Court in Directorate of Enforcement v. Deepak Mahajan, , summed up the legal position as follows:
"To sum up Section 4 is comprehensive and that Section 5 is not derogation of Section 4 (2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4 (2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the Special Act or any special provision excluding the jurisdiction or applicability of the Code. In fact, the second limb of Section 4 (2) itself limits the application of the provisions of the Code reading"......but subject to any enactment for the time being in force regulating the manner or place or investigating, inquiring into, trying or otherwise dealing with such offences"
20. It was further observed:
"The operation of Section 4 (2) of the Code is straight away attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently Section 167 of the Code can be made applicable during the investigation or inquiry of an offence under the special Acts also inasmuch as there is no specific provision contrary to that excluding the operation of Section 167".
21. Different modes of cognizance of offences by Magistrates are provided for by Section 190. It is well settled that the Magistrate can order investigation before taking cognizance. While it is so, Section 193 creates a bar against cognizance of offences by a Court of Session as a Court of original jurisdiction unless it is specifically provided for by the Code or any other law in force. Section 193 reads as under:
"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 committed to it by a Magistrate under this Code".
22. By a reading of the relevant provisions referred to above, it becomes evident that under the provisions of Code of Criminal Procedure, the Court of Session cannot act as a Court of original jurisdiction unless and otherwise expressly provided for by special or local law under which the offence is specified and punishment therefor is provided. It is evident from the scheme of the Code that after investigation, the police are required to file the report in the first instance in the Court of the Magistrate only. The charge-sheet cannot be filed in the Court of Sessions unless and otherwise it is provided so by the special statute. There is no provision in the Act enabling the Special Court to directly take cognizance and proceed further. After filing the charge-sheet in the Court of the Magistrate, the Magistrate has to satisfy himself that the case is triable by him as contemplated under the Code and he is competent by law to try such offence with reference to the First Schedule of the Code. If the Magistrate finds that the trial of offence does not fall within the purview of his powers then he has to commit the case to the Court of Session. Section 193, as already noticed, specifically lays down that the Court of Session cannot take cognizance of the offence as a Court of original jurisdiction. The Court of Session can take cognizance only upon the case being committed to it.
23. The question is whether there is anything in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which strikes a different note and which empowers the Court of Session, constituted as Special Court to directly take cognizance as a Court of original jurisdiction without any order of committal as regards the offences created by the said Act and/or other connected offences under the Indian Penal Code. Incidentally, it raises the question whether the bar under Section 193 applies to ihe Special Court constituted under the Act or whether Section 193 stands excluded by virtue of any provision contrary to or inconsistent with Section 193 and the other provisions in the Code relating to committal. There is a conflict of opinion in this regard amongst various High Courts. Kerala High Court took the view that Special Court receiving final report disclosing the offences punishable under Section 3 of the Act as well as the offences under the Indian Penal Code, can straightaway to take cognizance of the offences and take up trial of the case without an order of committal by the Magistrate. It was held that the Magistrate had no jurisdiction take cognizance of the offences under the Act and allied offences arising out of the same transaction. As already stated, the learned single Judge of this Court (Rajagopala'Reddy, J.) has followed the decision of the Kerala High Court in S. Madhava Reddy v. State of A.P.1996 (1) ALT (Crl.) 452 (A.P.). A different view has been taken by many other High Courts viz., Allahabad, Madhya Pradesh, Patna, Punjab & Haryana with which our learned brother A. Hanumanthu, J. who referred the matter to the larger Bench, agreed. We share the same view and hold that the Special Court cannot take direct cognizance of the offence and it can deal with the matter, only after committal by the Magistrate who is required to take cognizance of the offence under Section 190 of the Code of Criminal Procedure. Section 14 of the Act which created an exclusive forum for the trial of offences under the Act is silent as regards the procedure to be followed, and in our view, there is nothing in Section 14 which gives powers to the Special Court to try the offences under the Act and the connected offences under the IPC without there being an order of committal by the Magistrate after due cognizance is taken by him. Neither the object of the Act nor the overriding provision contained in Section 20 of the Act read with Section 4 (2) of Cr.P.C. can be called in aid to hold that the Special Court acts as a Court of original jurisdiction contrary to the prohibition contained in Section 193 and take cognizance directly soon after the report or chargesheet is filed in that Court. We do not agree with the contention advanced by the learned Counsel Mr. Tarakam that the said Act excludes committal procedure and the Special Court discharges the powers of Magistrate, Sessions Judge and Sessions Judge all combined.
24. We shall now refer to the reasoning of the Kerala High Court in the Division Bench case In Re. Director General of Prosecution (supra) and the Full Bench decision in Hareendran v. Sarada, 1996 (1) ALT (Crl.) 162 (Ker.) (F.B.). The Division Bench of Kerala High Court after referring to the observations in the decision of A.R. Antulay v. S.R. Nayak (supra) observed that the word 'try' used in Section 14 of the Act is wide enough not only to confer the power of actual trial of offences, but also to make every kind of enquiry as a Criminal Court of original jurisdiction as per the provisions of the Code. The learned Judges then explained that the Special Court can take cognizance of an offence for trial in one of the three modes contemplated by Section 193, Cr.P,C. excluding the remaining mode of taking cognizance i.e. upon commitment by a Magistrate. The same reasoning was applied to the related offences falling under I.P.C. In this context, it was observed:
"If the acts alleged in the complaint constitute not only offence under the Act but also offence under the Penal Code, the Special Court should take cognizance of that complaint even without an order of commitment by Magistrate as provided by Section 193 of the Code. In such a case, the Special Court should not only try the offence under the Act but also those falling under the Indian Penal Code. Any other view on this aspect will certainly go to defeat the intention of the Legislature in enacting the Act".
25. The learned Judges then referred to Section 20 of the Act and observed:
"As per that Section, the provisions contained in the Act have overriding force over any other law for the time being in force. This also shows that the provisions contained in Section 193 of the Code cannot be of any consequence to restrict the jurisdiction of the Special Court".
26. After referring to Section 220 (1) of the Code, the learned Judges were pleased to hold:
"....So if the various acts alleged against an accused constitute offence under the Act and combination of those acts, constitute offence under the Indian Penal Code as well, the accused can be tried for both in the same proceedings. Thus, if the acts alleged against the accused constitute atrocities as defined under Section 3 of the Act as also offence under the I.P.C. as well, accused can be tried for both in the same proceedings. For that, no order of commitment by a Magistrate is called for".
Ultimately, it was held that the accused alleged to have committed offences under Section 3 (xii) of the Act and Section 376 of IPC should be tried by the Special Court in the same trial.
27. Manoharan, J. in his separate judgment observed that if the Special Court continues to retain its character as a Sessions Court, the cognizance of the offence can be only as provided under Section 193 of the Code. But, the learned Judge was of the view that the Court of Sessions having been 'transmuted' as a Special Court, it becomes a Criminal Court of original jurisdiction in the matter of taking cognizance and therefore, Section 193 cannot apply, but only Section 190 of the Code will have application. The Full Bench of Kerala High Court in Hareendmn v. Sarada (supra) agreed with the view taken by the Division Bench and held that the Magistrate had no jurisdiction to take cognizance of the case on a complaint alleging an offence under Section 3 (1)(i) of the Act. The complaint ought to have been returned for presentation before the Special Court. The following observations of the Full Bench are quoted:
"As the Sessions Court is specified as Special Court it can take cognizance of the offences and as there is nothing indicative in the Act to hold that the Special Court gets jurisdiction to try the case only on committal by the Magistrate, it is not possible to hold that Court can take cognizance of an offence for trial only on proper committal by the Magistrate. As Section 14 of the Act specifically provides for speedy trial and as the Act itself has been enacted to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes by providing Special Courts for trial of such offences and as the Act nowhere hints committal proceedings, Section 193 of the Cr.P.C. cannot have any application".
28. We find it difficult to agree with the reasoning of the Kerala High Court in the two decisions referred to above. As already observed by us, in the absence of a particular procedure prescribed by the said Act as regards the mode of taking cognizance, enquiry or trial, the procedure under the Code will have to be applied by reason of Section 4 (2) of the Code as clarified by the Supreme Court in the case of Directorate of Enforcement (supra). There is no provision in the Act which excludes the application of Section 193, Cr.P.C. The mere fact that no procedure is prescribed or specified under the Special Act does not mean that the Special Act dispenses with the procedure for committal in a case triable by Court of Sessions and that the Special Court gets original jurisdiction in the matter of initiations, enquiry or trial. There is no good reason why the procedural provisions of Code relating to power and mode of taking cognizance including Section 193 should not be applied to the Special Court, Section 20 of the Act relied upon by Mr. Tarakam, learned senior Counsel does not in any way change the above legal position. If there is any inconsistency between the provisions of the Act and the Code, the Act will no doubt prevail. But if the Act and the Code are harmoniously read together, it does not exclude the application of Section 193 of the Code to the Special Court.
29. We respectfully disagree with the view expressed by the Kerala High Court that a Court of Session when once designated as Special Court ceases to be the Court of Session for all purposes or that it can exercise whatever powers the Court of original jurisdiction such as that of a Magistrate can exercise. The Court of Session armed with the powers of Special Court by virtue of the Notification issued by the State Government under Section 14 of the Act does not lose its character as a Court of Session. It remains basically as a Court of Session, notwithstanding the fact that the exclusive power to try the offences under the Act is also conferred on the Court of Session. It is difficult to accept the theory of 'transmutation' as opined by the learned Judges of Kerala High Court. There is nothing in the provisions or the scheme of the Act to make such Court a Court of original jurisdiction so as to go out of the bar envisaged by Section 193, Cr.P.C. If the view of the Kerala High Court is accepted, it will be difficult at the same time to hold that the Special Court has competence to take cognizance and try the offences under I.P.C. triable by Court of Session.
30. The word 'trial' may having regard to the context, be wide enough and include other steps preceding the trial. But there is nothing in the language of Section 14 or any other provisions of the Act which warrant such wide interpretation. As already noted, whenever powers of Court of original jurisdiction were intended to be conferred on the Court of Session constituted as Special Court under various central enactments, a specific provision to that effect is made including dispensing with the committal procedure. But there is no such provision in S.C. & S.T. (Prevention of Atrocities) Act. In view of this omission, the bar under Section 193, Cr.P.C. becomes applicable to the Special Court under the said Act by virtue of the language contained in Section 4 (2), Cr.P.C.
31. The Kerala High Court as well as learned single Judge of this Court (Rajagopala Reddy, J.)placed heavy reliance on the following passage in the judgment of the Supreme Court in Antulay's case:
".....The net outcome of this position is that a new Court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific question brought before it as Court of original criminal jurisdiction it had to refer to the Criminal Procedure undaunted by any designation claptrap. When taking cognizance, a Court of Special Judge enjoyed the powers under Section 190, when trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate, though as and by way of status it was equated with a Court of Session....Shorn of all embellishment, the Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original Criminal jurisdiction not being hide-bound by the terminological status description of Magistrate or a Court of Session. Under the Code, it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied."
32. The learned senior Counsel Mr. Tarakam also relied on the above passage as well as other observations in paragraph 27 of the Supreme Court in Antulay's case. As rightly pointed out by the learned Add! Advocate General and Addl. Public Prosecutor, those observations were made in view of the specific provisions of that Act. There was a specific provision under Section 8 (1) in the Criminal Law Amendment Act of 1952, which enabled the Special Judge appointed under the said Act not only to deal with cases of corruption but also take cognizance of offence without the accused being committed to him for trial. Moreover, Sub-section 3 (a) of Section 8 provided that the provisions of the Code shall, so far as may be, apply to the proceedings before a Special Judge and for the purposes of the said provisions, the Special Judge shall be deemed to be a Magistrate. Thus, in all aspects, the Special Court therein was vested with the powers of a Court of original criminal jurisdiction. Commenting on these provisions, their Lordships of the Supreme Court observed:
"It positively conferred the power on Special Judge to take cognizance of offences and it negatively removed any concept of commitment. It is not possible therefore to read Section 8 (1) as canvassed on behalf of the appellants that cognizance can only be taken on the Police report".
33. It was also observed:
"........it necessarily implies that the Court of Special Judge is armed with power to take cognizance of offences but that it is denied the power to take cognizance on commitment by the Magistrate. This excludes the mode of taking cognizance under Section 193."
34. The Supreme Court repelled the argument that the Special Judge should answer the description of a Magistrate before it takes cognizance in any of the other three modes invested by Section 190. The Supreme Court pointed out "If Section 190 cannot be availed, we fail to see how a Special Judge would be entitled to take cognizance on a Police report. If Section 190 is not attracted, the three modalities of taking cognizance of offences would not be available. One cannot pick and choose as it suits one's convenience. Either all the three modalities are available or none and Section 8 (1) which confers power of taking cognizance does not show any preference".
35. The Supreme Court then proceeded to discuss as to what exactly is the position of Special Judge and whether it was necessary to assimilate him with a Magistrate or a Sessions Court. This part of the discussion is contained in paragraph 27 from which the passage above extracted occurs.
36. Following observations of the Supreme Court in paragraph 27 are also relevant:
"In fact, in order to give full effect to Section 8 (1), the only thing to do is to read Special Judge in Sections 238 to 250 wherever the expression 'Magistrate' occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile to go in search of the fact whether for the purposes of Section 190 which conferred power on the Magistrate to take cognizance of the offence, Special Judge is a Magistrate; what is to be done is that one has to read the expression 'Special Judge' in place of Magistrate, and the whole thing becomes crystal clear. The Legislature wherever it found the grey area clarified it by making specific provision such as the one in subsection (2) of Section 8 and to leave no one in doubt further provided in sub section (3) that all the provisions of the Code of Criminal Procedure shall so far as they are not inconsistent with the Act apply to the proceedings before a Special Judge."
37. It was then pointed out that "when taking cognizance, a Court of Special Judge enjoyed the powers under Section 190". The question which arose in that case was is whether a private complaint could be taken cognizance of by the Special Judge. The question was answered by the Supreme Court in the affirmative and the contention that cognizance can only be taken on the police report was negatived. As already observed, special provisions contained in Criminal Law Amendment Act, especially Section 8, made all the difference and it is in the light of these provisions, the Supreme Court described the Special Court as a Court of original Criminal jurisdiction with powers to take cognizance by any of the three modes mentioned in Section 190, but not pursuant to committal by a Magistrate. Thus, the provisions of the Act dealt with by the Supreme Court were vastly different and the decision in Antulay's case (supra) does not lend support to the view taken by the Kerala High Court and by the learned single Judge of this Court.
38. The Division Bench of Madhya Pradesh High Court in Meerabai v. Bhujbal Singh, 1995 Crl.LJ. 2376 (M.P.) and of Allahabad High Court in Pappu Singh v. State of U.P., 1995 Crl.L.J. 2803 (All.) dissented from the view taken by the Kerala High Court and explained the observations in Antitlay's case (supra). The Patna High Court in Jhagurmahto v. State of Bihar, 1993 (1) Crimes 643 (Patna) and Punjab and Haryana High Court in Jyoti Arora v. State of Haryana, 1998 (2) AI Crl.L.R. 73 (P & H) also took the view that the Sessions Court constituted as Special Court cannot take cognizance of offences under the Act, unless the case has been committed to him by a Magistrate. The provisions of Section 193, Cr.P.C. read with Section 4 (2) of the Code were relied upon. We would respectfully express our concurrence with the view taken by Patna, Madhya Pradesh, Allahabad, Punjab & Haryana High Courts.
39. One important reason which persuaded us to take the view that the Special Court cannot have original jurisdiction and take direct cognizance of the offence without an order of committal is that the Parliament wherever it felt necessary incorporated specific provisions in various enactments viz., Section 5 of the Prevention of Corruption Act, Section 12-AA of the Essential Commodities Act and Section 36-A of Narcotic Drugs and Psychotropic Substances Act, 1985. Why it has been omitted in the present Act, we cannot speculate. But there seems to be lacuna and it is for the Legislature to take care of the same.
40. The argument that the object of the Act will be defeated and the proceedings will get delayed, does not appeal to us, firstly for the reason that the Court cannot supply the omission in the Act and secondly for the reason that the process of committal does not always involve delay.
41. We are also supported in our view by a Division Bench decision of this Court in A. Goverdhana Reddy v. Superintendent of Police, (D.B.) in which the Bench while construing an exactly similar provision in the Human Rights Protection Act held that the Human Rights Protection Court (presided over by an Addl. Sessions Judge as in the present case) does not possess original jurisdiction to take cognizance of the offence. It was observed by P.S. Misrac, J. speaking for the Division Bench as under:
"The Human Rights Court, being a Court of Session for trial of offences violative of human rights, does not have the power to take cognizance of any offence as a Court of original jurisdiction unless the case is committed to it by a Magistrate. A Magistrate of the First Class or a Magistrate of the Second Class, as the case may be, when empowered in this behalf, can take cognizance of any offence upon receiving a complaint of fact, upon a police report or upon information received from any person other than a police officer or upon his own knowledge. Court of Session however cannot do so. Accordingly, Human Rights Court also cannot take cognizance of the offence as the Court of the first instance".
42. Hanumanthu, J. who made the reference to a larger Bench referred this case with approval.
43. The learned senior Counsel Mr. Tarakam submitted that the provision similar to Section 20 of the Act is not present in the Human Rights Protection Act and therefore the said decision has no bearing in the present case. We are unable to accept the contention of the learned Counsel. We have already referred to Section 20 and expressed the view that Section 20 which gives an overriding effect to the Act does not, in the absence of a specific provision to the contrary, exclude the applicability of Section 193, Cr.P.C.
44. We may also observe that in relation to related offences under I.P.C. which do not come under the purview of the Act, the view which we have taken applies with greater force because of Section 4 (2) of Cr.P.C. and there being nothing contrary in the Act. If the Special Court ceases to be a Sessions Court, and the provisions of Cr.P.C. such as 8, 220, 223 etc., do not govern the trials in a special Court then I.P.C. offences cannot be tried at all along with the offences under the Act. This will lead to an anomalous and unintended results.
45. Lastly, before concluding our discussion on this aspect, we may refer to the judgment of the Supreme Court in Jagadish Prasad Gupta v. State of Rajasthan and Ors., 1995 Suppl. (3) SCC 386 which was relied upon by Hanumanthu, J. in his order of reference. There the question arose whether the transfer of the case from the Court of Judicial Magistrate for CBI cases to the Special Court constituted under the Essential Commodities Act is proper. The accused was charged under Section 406, IPC and for some other offences under the Essential Commodities Act. Sub-section (2) of Section 12-AA enables the Special Court to try the offence other than the offence under the Essential Commodities Act with which the accused was charged at the same trial subject to the proviso that such offence is triable in a summary way. As the offence under Section 406, IPC cannot be tried summarily in view of Section 260 of Cr.P.C., the Supreme Court held that the Addl. Sessions Judge presiding over the Special Court cannot get jurisdiction by a mere transfer of the case by the High Court. Their Lordships of the Supreme Court further observed that the Court of Session acting as Special Court cannot take cognizance of an offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. With great respect, we are unable to follow this decision for the reason that clause (e) of Sub-section (1) of Section 12-AA was not brought to the notice of their Lordships. Their Lordships only noticed Sub-section (2) of Section 12-AA. Nevertheless, in view of the discussion made above, our conclusion is that the Special Court cannot take cognizance without committal by the Magistrate in view of the bar created by Section 193, Cr.P.C. and, in the absence of a specific provision to the contrary in the Act.
46. The above conclusion applies with greater force in respect of trial of allied offences under Indian Penal Code having regard to the provision in Sub-section (1) of Section 4 of the Code. The correct procedure to be adopted therefore is that in the first instance, upon investigation, the Police Officer has to file a charge-sheet in the Court of the Magistrate having territorial jurisdiction and then the Magistrate on being satisfied that the offences alleged of can only be tried by the Special Court established under Section 14 of the Act, he has to commit the case to the Special Court and thereafter only the Special Court can take cognizance of the offence, on the analogy of the cases triable by the Court of Session.
47. The next question is whether the offences committed under the Act as well as under the IPC in the course of the same transaction, can be tried by the Special Court in the same trial. As already noticed, the Kerala High Court as well as the learned single Judge of this Court have taken the view that the Special Court gets jurisdiction to try such inter-related offences. The learned single Judge (Hanumanthu, J.) who made the order of reference also took that view though for different reasons. The learned Judge observed as follows:
"The answer to this can be found under Section 220 of the Code, which contemplates a single trial for various offences separately charged, committed in the course of the same transaction. Sub-section (3) of Section 220 of the Code covers cases where particular act constituting offence falling within two or more separate definitions of any law by which the offences are defined and punished. When a single act constitutes an offence punishable under two different laws, it comes squarely within the Sub-section (3) of Section 220 of the Code. As per Sub-section (4), if several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined and for any offence constituted by any one or more of such acts. So, if various acts alleged against an accused constitute an offence under the Act and combination of those acts, constitute an offence under Indian Penal Code as well, the accused can be tried for both in the same proceeding. Thus, if the acts alleged against the accused constitute atrocities as defined under Section 3 of the Act and also an offence under the Indian Penal Code as well, accused can be tried for both in the same proceeding. Further, there is no bar in the Act for a Special Court trying the offence under the Indian Penal Code.".
We share the same view and approve the Kerala view insofar as this aspect is concerned. However, the trial can only take place in such an event after committal by the Magistrate.
48. The decision in Obulesu v. State of A.P., referred to by the learned Addl. District Judge has no application here and does not lay down any contrary view. In that case, it was held on facts that there was no offence at all under the Act and other offences under the I.P.C. can be tried by the regular Courts. It is in this context that it was observed that the case should not have been transferred to the Special Court.
49. The next question arises whether Notification II in G.O.Ms. No 10, Social Welfare (H) dt. 7-2-1996 insofar as it authorises the Presiding Officers of Special Court to "receive, try and dispose of the cases filed under the Act" will vest the Special Court with the power to take cognizance of the offences under the Act directly without being committed under Section 193, Cr.P.C. In view of the discussion on the first question, our answer is in the negative. If the provisions of the Act and Code do not permit taking direct cognizance of the offences without committal, the Government while constituting the Special Court, cannot obviously confer such power on the Special Court. The word 'receive' in the Notification does not and cannot mean that the Special Court can take the case on file directly without an order of committal.
50. The next question referred is about the Circulars of the High Court dated 12-2-1992 and 26-2-1996. The 1st circular dt. 12-2-1992 reads as follows:
"By virtue of Government's Notification second cited three Special Courts for trial of offences under SCs & STs (Prevention of Atrocities) Act, 1989, were established at Guntur, Chittoor and Mahbubnagar exclusively to try the offences under the said Act within their jurisdiction over the districts mentioned in the references second cited.
The High Court in exercise of the powers conferred under Section 407 of Cr.P.C., 1973 be and hereby permits all the Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges of the concerned districts mentioned in Column No. 3 of the notification enclosed herewith straightaway to transfer the cases filed under SCs and STs (Prevention of Atrocities) Act, 1989 including those cases filed under IPC which are punishable with imprisonment for 10 years or more, in which SCs and STs are complainants and the accused do not belong to SCs or STs to the concerned Special Court for trial of offences under SCs and STs (Prevention of Atrocities) Act, 1989 for disposal according to law.
The Special Judges for trial of offences under SCs and STs (Prevention of Atrocities) Act, 1989 at Guntur, Chittoor and Mahbubnagar are hereby directed to receive all the cases that are transferred to them by the said Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges mentioned supra and dispose of according to law."
51. The 2nd circular was issued in consequence of re-constitution of the Special Courts under G.O. Ms. No. 10-Social Welfare dated 7-2-1996. The relevant portion of the Circular issued by the High Court on administrative side reads as under:
I am therefore to clarify that the Special Sessions Judges at Chittoor, Guntur and Mahbubnagar are hereby directed to follow the instructions issued in the reference first cited and to straightaway transfer all the pending cases of different districts to the Additional District and Sessions Judges. Additional Metropolitan Sessions Judges who are empowered to try the cases under the Act as per G.O.Ms. No. 10, S.W. (H) Dept., dt. 7-2-1996.
The Additional District and Sessions Judges, Additional Metropolitan Sessions Judges who are empowered to try the cases under the Act are hereby directed to receive the said cases directly and maintain a separate register for the cases in question.
52. It cannot be said that the concerned Sessions Court designated as Special Court gets jurisdiction to try the offences under the Act merely because of the order of the High Court permitting the transfer of the case to the Special Court. We are of the view that the circular of the High Court has no bearing on the question whether the Special Court can straightaway take the cognizance of the offences without there being committal by the Magistrate. The High Court circular only makes it specific that consequent on the re-designation/reconstitution of the Special Courts by the State Government, the cases under the Act shall be transferred to the Courts invested with jurisdiction. The power of the High Court under Section 407 to transfer the case or classes of cases from one Criminal Court to another cannot be doubted. Such power can be exercised inter alia on the ground that it is expedient to meet the ends of justice. We should however make it clear that the words "straightaway transfer pending cases" cannot be construed to mean that irrespective of committal or otherwise, the cases should be transferred to be tried by the jurisdictional Special Court. While exercising powers under Section 407, Cr.P.C., the High Court cannot disregard the mandatory preconditions for taking cognizance of the offences.
53. While there is no specific instruction or direction in the two circulars as regards the cognizance of cases arising under the Act by the Special Courts and the need for committal by the Magistrate, the Circular dated 30-9-1993 issued by the High Court is directly on point. In that circular, the High Court after referring to Kerala Judgment in In re. Director General of Prosecutions (1993 (1) ALT (Crl.) 52 (Ker.) instructed the Special Courts to take cognizance of the offences under the Act following the procedure as laid down in the decision of Kerala High Court without insisting on the committal procedure. This Circular goes against the view taken by us and is therefore invalid. The later circular dt. 26-2-1996 cannot therefore, be understood in the light of the circular dt. 30-9-1993. Accordingly, we clarify.
54. Before concluding, we may add that Section 193 is enacted in the Chapter with the heading "Conditions requisite for initiation of proceedings". In Mohd. Safi v. State of West Bengal, , the Supreme Court while dealing with the competence of Court under the Code of Criminal Procedure observed as follows:
"The competence of a Court, however, depends not merely on the circumstance that under some law it is entitled to try a case falling in the particular category in which the offence alleged against the accused falls. In addition to this, taking cognizance of the offence is also material in this regard. Under the Code of Criminal Procedure, a Court can take cognizance of an offence only if the conditions requisite for initiation of proceedings before it as set out in Part B of Chapter XV are fulfilled. If they are not fulfilled, the Court does not obtain jurisdiction to try the offence".
55. The above observations of the Supreme Court seem to suggest that if the Special Court takes cognizance of the offence or offences under the Act as well as IPC contrary to Section 193, Cr.P.C., it affects the jurisdiction of the Special Court because it would amount to ignoring the pre-conditions for initiation of proceedings. Whether proceedings become null and void in such a case and whether taking cognizance of offence wrongly without committal goes to the root of the matter, we need not deal with in this case. Suffice it to note that drastic changes have been introduced by the Cr.P.C. of 1973. Indeed, the committal procedure has now become more or less a formality. The only function of the Magistrate now is to satisfy himself prima facie that whether the offence is triable exclusively by the Court of Session and to satisfy himself that the copies of the statements and relevant documents have been supplied to the accused. In the light of this change, whether the trial by the Sessions Court after directly taking cognizance of the offence contrary to the prohibition in Section 193, Cr.P.C. makes the entire proceedings null and void and whether the observations of the Supreme Court in Safi's case (supra) made in the context of the old Code would still hold good, is a debatable question. However, where the trial has not commenced as in the instant case and the charge-sheets filed have been returned or nothing more has been done thereafter, the Special Court cannot proceed further. The proper course would be to take the case on file after committal and then try the offences. The mere fact that the charge-sheets or relevant records were transmitted to the Special Court by the regular Courts pursuant to the directions issued by the High Court on administrative side will not clothe the Special Court with the Powers which it does not have under the law. Otherwise, it would amount to ignoring the pre-conditions for initiation of proceedings.
56. The next question referred to by the learned single Judge is whether clause (v) of Sub-section (2) of Section 3 is attracted in the case of an offence under Section 302, IPC which is punishable with death or imprisonment for life. Our answer to this question is in the negative. The object of the above provision is to provide for enhanced punishment in regard to offences 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.
57. The 4th question formulated by the learned single Judge is whether the clause (v) of Section 3(2) is attracted where the offence is committed against a person or property without knowing that such person is a member of the Scheduled Caste or Scheduled Tribe, but, it comes to light only subsequent to the Commission of offence that such person is a member of SC/ST. Here again, our answer is in the negative. The words 'on the ground' employed in clause (v) are important. It is the motive and intention at the time of commission of offence that matters. If the offence punishable with a term of 10 years of imprisonment or more is committed not because the victim is a member of SC/ST, but for other reasons or without having knowledge about the caste, there is no scope to apply Section 3(2)(v). For instance, a case of robbery for gain punishable under Section 392 does not attract Section 3(2)(v) merely because the victim is a Scheduled Caste or Scheduled Tribe person.
58. The last question is whether the Special Court has jurisdiction to try SC/ST offender when he commits an offence under the Act along with other offenders who are not members of SC/ST. The answer to this question is to be found in Section 223, Cr.P.C. The persons accused of the same offence or different offences committed in the course of the same transaction can be charged and tried together. Section 223, Cr.P.C. comes into play by virtue of Section 4, Cr.P.C. The question is whether the Special Court has jurisdiction to try the SC/ST offender, if he commits an offence in the course of same incident or transaction along with other offenders who are not members of SC/ST committing an offence under the Act. We may mention that this question as formulated by the learned single Judge who made the reference contains the words "commits an act under the Act". The question of a member of Scheduled Caste or Scheduled Tribe committing an offence under the Act does not arise because the specified offences committed by person other than the members of the Scheduled Caste or Scheduled Tribe are alone punishable under the Act. Hence, we have reframed the question as above.
59. Thus, we answer the reference as indicated supra. In the light of the legal position clarified by us, the charge-sheets (Police reports) alleging commission of offences under the Act cannot be directly filed in the Special Court. The charge-sheets if pending are liable to be returned for filing the same before the Court of the concerned Magistrate of First Class for securing committal of the accused to the Court of Session constituted as Special Court. We direct that the concerned Police Officers should present in the Court of the competent Magistrate the charge-sheets and related documents either already returned by the Special Court or after taking return from the Special Court. The committalproceedings in such cases should be taken up on priority basis, without avoidable delay by the concerned Magistrates.
60. We part with the case with a few general observations which we earnestly hope would receive the attention of the Union Law Ministry and the Law-Makers. The enforcement of the Act - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for over a decade has exposed many a legal lacunae and the potentiality for endless controversies. Whether the Special Court can directly take cognizance of the offences under the Act together with the offences under I.P.C. or whether the committal is necessary, has given rise to a spate of litigations and has affected the prospects of successful prosecution.
61. Excepting the Kerala High Court, all other High Courts have taken the view that Section 193, Cr.P.C. applies and the committal is indispensable. We have shared the same view just-now-not without considerable anxiety. We felt that a different view cannot be taken by resorting to an interpretative process without trenching on the domain of law-making. All this has arisen because of the absence of specific provisions as are contained in various other Central enactments referred to supra, empowering the Special Court directly to take cognizance of the offences under the Act together with other offences committed in the course of the same incident. To achieve the desired objective of the Act and to make it more effective, it is desirable that the Parliament should step in and introduce necessary provisions with retrospective effect, if need be.
62. On the practical side of the implementation of the Act too, we have come across certain distortions leading to mis-application of law. Charge-sheets under the Act are filed in a mechanical manner alleging offences under the Act although such offences do not at all fall within purview of the Act. The Investigating Officers have failed to realise that merely because the victim is a member of Scheduled Caste or Scheduled Tribe, the offences committed by the accused which are otherwise punishable under general law, do not attract the provisions of the Special Act. Even the presiding Judges of the Special Courts without proper application of mind took on file such charge-sheets and proceeded with the trials. The resultant situation is travesty of justice and the likelihood of the perpetrators of heinous crimes escaping the punishment under any law. For instance, we have come across a case where a Scheduled Caste woman was alleged to have been gang raped and murdered by a group of 4 or 5 who were all engaged in the avocation of vending some items on the Railway platform along with the victim woman. Another case which has come to our notice is the murder of an arrack shop proprietor a tribal by his servant for gain. The accused in the above said two cases were charged under the provisions of the Special Act. All this betrays either lack of comprehension of the true scope and purport of the Act or an anxiety to launch prosecutions for statistical purposes. It is necessary to arrest this trend. It is for the State and Central Governments to act in the matter.
63. We direct the State Government to pay an amount of Rs. 2,000/-(Rs. Two thousand) as fee to the Counsel Mrs. S. Nanda who appeared as Amkus Curiae on the directions of this Court. Let the copies be marked to the Secretary. Union Ministry of Law and Justice, Secretary, Union Ministry of Welfare, Law Secretary of the State of A.P., D.G. of Police and Superintendents of Police of Khammam, Warangal and Mahaboobnagar.