SHANTABEN BHURABHAI BHURIYA versus ANAND ATHABHAI CHAUDHARI & ORS. on 26 October 2021

460

SUPREME COURT REPORTS

[2021] 10 S.C.R.

ASHANTABEN BHURABHAI BHURIYA

v.

ANAND ATHABHAI CHAUDHARI & ORS.

(Criminal Appeal No. 967 of 2021)

BOCTOBER 26, 2021

[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]

Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 – Proviso to s.14 inserted by amendment –Code of Criminal Procedure, 1973 – ss.207, 209, 193, 482 –COffences under Atrocities Act – Second proviso to s.14 conferspowers upon the Special Court constituted u/s.14 also to directlytake cognizance of such offences – Cognizance taken by Magistrateand thereafter case committed to the Special Court – Criminalproceedings, if vitiated – High Court quashed and set aside the FIRDas well as order passed by the Magistrate taking cognizance andissuing summons for offences under IPC as well as Atrocities Act –On appeal by original informant/complainant, held: It cannot besaid that proviso to s.14 takes away jurisdiction of the Magistrateto take cognizance and thereafter to commit the case to the SpecialCourt for trial for the offences under the Atrocities Act – MerelyEbecause the Magistrate had taken cognizance of the offences andthereafter the case was committed to the Special Court, it cannot besaid that entire criminal proceedings including FIR and charge-sheet etc. are vitiated – Unless the rights which flow from s.14 ofthe Atrocities Act are affected, it cannot be said that the accused isFprejudiced by the Magistrate taking cognizance for the offencesunder the Atrocities Act and thereafter committing the case to theSpecial Court – Impugned judgment quashing the entire criminalproceedings against accused for offences u/ss.452, 323, 325, 504,506(2), 114, IPC and s.3(1)(x) of the Atrocities Act, is set aside –Accused be tried by Special Court having jurisdiction – Penal Code,G1860 – ss.452, 323, 325, 504, 506(2) and 114 – Constitution ofIndia – Article 226 – Scheduled Castes And The Scheduled Tribes(Prevention Of Atrocities) Amendment Act, 2015.

Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 – s.14 – Object and purpose of – Discussed.H

Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 – s.14 – Pre and Post Amendment – Discussed– Scheduled Castes And The Scheduled Tribes (Prevention OfAtrocities) Amendment Act, 2015.

Code of Criminal Procedure, 1973 – s.482 – Held: Criminalproceedings cannot be quashed in exercise of powers u/s.482 onthe ground of delay in lodging of FIR.

Code of Criminal Procedure, 1973 – s.197 – If applicable –Serious allegations against accused-Police Officers of misuse ofpowers – Held: It is debatable whether the acts alleged to havebeen done by the accused can be said to be part of official dutiesand thus if power u/s.197 would apply – Further, lack of sanctionfor prosecution u/s.197 can not be a ground to quash criminalproceedings u/s.482, CrPC.

Code of Criminal Procedure, 1973 – ss.460, 190 – Held: Evenconsidering s.460, if any Magistrate not empowered to takecognizance of an offence u/clause (a) or (b) of sub-section(1) ofs.190, takes cognizance, such irregularities do not vitiateproceedings.

Words & Phrases – “only”, missing in second proviso to s.14– Intention of legislature – Discussed – Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 – Secondproviso to s.14.

Allowing the appeal, the Court

HELD: 1.1 The object and purpose of insertion of Section14 is to provide speedy trial for the offences under the AtrocitiesAct, 1989 and to avoid the delay which was taking place by thecommittal of the offence by the Magistrate to the Special Court /Sessions Court. [Para 8.2][478-G]

Rattiram and Others vs. State of Madhya Pradeshreported in (2012) 4 SCC 516: [2012] 3 SCR 496 –relied on.

1.2 Second proviso to Section 14 of the Atrocities Act whichhas been inserted by Act 1 of 2016 w.e.f. 26.1.2016 confers powerupon the Special Court so established or specified for the purpose A

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Aof providing for speedy trial also shall have the power to directlytake cognizance of the offences under the Atrocities Act.Considering the object and purpose of insertion of proviso toSection 14, it cannot be said that it is not in conflict with theSections 193, 207 and 209 of the Code of Criminal Procedure,1973. It cannot be said that it takes away jurisdiction of theBMagistrate to take cognizance and thereafter to commit the caseto the Special Court for trial for the offences under the AtrocitiesAct. Merely because, Magistrate has taken cognizance of theoffences and thereafter the trial / case has been committed toSpecial Court established for the purpose of providing for speedyCtrial, it cannot be said that entire criminal proceedings includingFIR and charge-sheet etc. are vitiated and on the aforesaid groundentire criminal proceedings for the offences under Sections 452,323, 325, 504, 506(2) and 114, IPC of the Indian Penal Code andunder Section 3(1)(x) of the Atrocities Act are to be quashed andset aside. In view of insertion of proviso to Section 14 of theDAtrocities Act and considering the object and purpose, for which,the proviso to Section 14 of the Atrocities Act has been insertedi.e. for the purpose of providing for speedy trial and the objectand purpose stated herein above, it is advisable that the Courtso established or specified in exercise of powers under Section14,Efor the purpose of providing for speedy trial directly takecognizance of the offences under the Atrocities Act. But at thesame time, merely on the ground that cognizance of the offencesunder the Atrocities Act is not taken directly by the Special Courtconstituted under Section 14 of the Atrocities Act, the entirecriminal proceedings cannot be said to have been vitiated andFcannot be quashed and set aside solely on the ground thatcognizance has been taken by the Magistrate after insertion ofsecond proviso to Section 14 which confers powers upon theSpecial Court also to directly take cognizance of the offencesunder the Atrocities Act and thereafter case is committed to theGSpecial Court / Court of Session. [Para 9.1][479-C-H; 480-A-B]

1.3 In support of the above conclusion, the words used insecond proviso to Section 14 are required to be consideredminutely. The word “only” is conspicuously missing. If theintention of the legislature would have to confer the jurisdiction H

to take cognizance of the offences under the Atrocities Actexclusively with the Special Court, in that case, the wording shouldhave been “that the Court so established or specified only shallhave power to directly take cognizance of offences under thisAct”. Therefore, merely because now further and additionalpowers have been given to the Special Court also to takecognizance of the offences under the Atrocities Act and in thepresent case merely because the cognizance is taken by theMagistrate for the offences under the Atrocities Act and thereafterthe case has been committed to the Special Court, it cannot besaid that entire criminal proceedings have been vitiated and sameare required to be quashed and set aside. Even the aforesaidaspect is also required to be considered from another angle i.e.theory of prejudice to the accused. The accused is to be tried forthe offences under the Atrocities Act by Special Court / ExclusiveSpecial Court constituted under Section 14 of the Atrocities Act.Even those rights are also available to the victim for the offencesunder the Atrocities Act in which the trial is by the Special Court/Exclusive Special Court constituted under Section 14 of theAtrocities Act. Therefore, unless and until those rights whichflow from Section 14 of the Atrocities Act are affected, the accusedcannot make any grievance and it cannot be said that takingcognizance by the Magistrate for the offences under the AtrocitiesAct and thereafter to commit the case to the Special Court, he isprejudiced. Even considering Section 460 of the Code of CriminalProcedure, if any Magistrate not empowered by the law to takecognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190, takes cognizance, such irregularitiesdo not vitiate proceedings. At the most, it can be said to beirregular proceedings for which, it does not vitiate theproceedings. In view of the above and for the reasons statedabove, the view taken by the High Court that as in the presentcase the Magistrate has taken cognizance for the offences underthe Atrocities Act and thereafter the case is committed to theSpecial Court and therefore, entire criminal proceedings arevitiated, cannot be accepted and is unsustainable. If on theaforesaid ground entire criminal proceedings are quashed, in thatcase, it will be a premium to an accused who is alleged to have ABC

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Acommitted the offence under the Atrocities Act. Assuming forthe sake of argument that the procedure adopted is irregular, inthat case, why should victim who belonged to Scheduled Castesand Scheduled Tribes community be made to suffer. [Paras 9.2-12][480-C; 481-B-G]

B2.1 It is not correct to say that the FIR was lodged after aperiod of two months and that too without any explanation. Evenotherwise, on the ground of delay in lodging FIR / complaint, thecriminal proceedings cannot be quashed in exercise of powersunder Section 482 of the Code of Criminal Procedure. The aspectof delay is required to be considered during the trial and duringCthe trial when the complainant is examined on oath and a questionis put to him/her on delay and he/she can very well explain thedelay in his/her cross examination. [Para 14][482-E-G]

2.2 Now, so far as the observation made by the High Courtthat in view of bar under Section 197 of the Code of CriminalDProcedure and no sanction was obtained is concerned, theaforesaid also cannot be ground to quash criminal proceedings inexercise of powers under Section 482 of the Code of CriminalProcedure. Looking to serious allegations against the PoliceOfficers of misuse of powers, and it is alleged that innocentEpersons residing in the society were beaten and even in the earlierday the phone call was made by the complainant/victim informingthat thieves have come in the society and complaint was madethat nothing is being done despite repeated such incidents andthe alleged incident in the present case is in the midnight whenagain Police Officers along with additional police staff went to theFvillage and the allegation against the accused are with respect tosecond incident, it is debatable whether power under Section 197of the Code of Criminal Procedure would apply and the acts whichare alleged to have been done by the accused / Police Officerscan be said to be part of official duties. Therefore, at this stage,Gto quash the entire criminal proceedings in exercise of powersunder Section 482 of the Code of Criminal Procedure isimpermissible. Even assuming that the High Court was right thatin absence of sanction under Section 197, the proceedings arevitiated, in that case, the High Court could have directed the H

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authority to take sanction and then proceed, instead of completelyquashing the entire criminal proceedings. The impugned judgmentand order passed by the High Court in Special Criminal ApplicationNo.5670 of 2017 is quashed and set aside. Accused be tried bythe Special Court having jurisdiction for the aforesaid offences.[Paras 15, 16][482-G-H; 483-A-D, F]

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State of MP v. Bhooraji and Ors. (2001) 7 SCC 679 :[2001] 2 Suppl. SCR 128; Moly and Anr. v. State ofKerala (2004) 4 SCC 584 : [2004] 3 SCR 346;Vidyadharan v. State of Kerala (2004) 1 SCC 215:[2003] 5 Suppl. SCR 524 – referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION” Criminal AppealNo.967 of 2021.

From the Judgment and Order dated 09.05.2019 of the High Courtof Gujarat at Ahmedabad in Special Criminal Application No.5670 of2017.

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Nikhil Goel, Ms. Naveen Goel, Vinay Mathew, Advs. for theAppellant.

Aniruddha P. Mayee, Adv. for the Respondents.

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The Judgment of the Court was delivered by

M. R. SHAH, J.

1.0. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 09.05.2019 passed by the High Court of Gujarat passedin Special Criminal Application No.5670 of 2017, by which, the HighCourt has allowed the said Special Criminal Application and has quashedand set aside the FIR being M Case No.2 of 2013 for the offencespunishable under Sections 452, 323, 325, 504, 506(2) and 114 of theIndian Penal Code and under Section 3(1)(x) of the Scheduled Castes G

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Aand Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafterreferred to as the “Atrocities Act”) and also quashing and setting asidethe order of issuance of summons dated 15.02.2017 passed by the learnedJMFC, Jhalod in Criminal Inquiry No.108 of 2013 as well as allconsequential proceedings arising therefrom, the original informant/complainant has preferred present Appeal.B2.0. The facts leading to the present appeal in nutshell are asunder:

2.1. That on 06.09.2013, one FIR being CR.No.I-104 of 2013came to be registered against the husband of the original complainant-Cappellant herein for the offences punishable under Sections 323, 353,362, 186 and 114 of the Indian Penal Code. That the said FIR waslodged / given at the instance of the respondent no.1 herein – originalaccused no.1 who was working as Police Sub Inspector alleging interalia that the original accused persons named therein obstructed the publicservants in performance of their duties and was beaten by them underDthe guise that they were not able to catch the thief and caused injuries tothem.

2.2. As per the case of the complainant herein, in the village therewere increasing incidents of theft and loot, due to which, the villagerswere afraid. On 6.9.2013, at about 8 pm one thief came to the house ofEone Pravinbhai who lives in their society and thereafter, the police werecalled; that the Police Officers came to the Society and since the peoplefrom the society were not satisfied with the police, the accused personswho are Police Officers got excited and thereafter, staff from SP Office,Dahod was called and thereafter the respondent no.1 – original accusedFno.1 went back to Limdi Police Station. As per the case of thecomplainant, at 10.30 pm on 06.09.2013, when the residents of the societywere in their houses and at that time, the complainant was sitting outsideher house, three Police Officers came in a car and original accused nos.1 and 2 came to the society and all the original accused persons abusedthe complainant with regard to her caste and also caused injuries to her.GAs alleged in the FIR, the original accused persons also ransacked thehouse of complainant and also beat the son of the complainant and tookaway husband of the complainant and gave threats to them with direconsequences. As per the case of the complainant, she tried to lodge aformal complaint on 07.09.2013, but was unable to get the same lodgedHand therefore, she was constrained to file the complaint before the learned Magistrate on 13.09.2013. That learned Magistrate sent the complaintfor investigation as per Section 156(3) of the Code of Criminal Procedureby observing that having heard the complainant and perused thedocumentary evidence and considering the seriousness of the case, theinvestigation is required. The learned Magistrate also directed theInvestigating Officer to submit the report before 29.10.2013 and alsodirected that yadi in this regard should be sent to the Dy.Sp, Dahod.That the Investigating Officer submitted report on 29.05.2014 statingthat the allegation in the FIR with regard to beating are not supportedand as per the statement of Dy.Sp recorded on 27.5.2014, the accusedno.2 was present with him in Limdi Police Station at the time of allegedoffence and had not gone outside the police station. In the report, it wasalso stated that statements of the witnesses are general and vague andafter investigation, there is no evidence to proceed with the matter.Therefore, the Investigating Agency filed a summary report before theconcerned Magistrate to that effect.

2.3. After filing of summary report, learned Judicial MagistrateFirst Class passed an order for further investigation under Section 173(8)of the Code of Criminal Procedure on 03.10.2015 by observing thatsummary report is not clear with regard to the involvement of the originalaccused no.3 and other Police Officers. That thereafter, the DeputySuperintendent of Police, SC/ST Cell, Dahod submitted its report to thelearned Magistrate pointing out that the alleged offences are prima facieappear to have been committed by the accused persons. That thereafter,after considering the report submitted by the Deputy Superintendent ofPolice, SC/ST Cell, Dahod, the learned Magistrate vide order dated15.02.2017 had taken cognizance of the alleged offences by issuance ofthe process under Section 204 of the Criminal Procedure Code.

2.4. Feeling aggrieved and dissatisfied with the order passed bythe learned Magistrate summoning the accused/ issuing the processagainst the accused for the aforesaid offences, the accused preferredSpecial Criminal Application before the High Court under Article 226 ofthe Constitution of India r/w Section 482 of the Code of CriminalProcedure and prayed to quash and set aside the FIR / complaint beingM Case No. 2 of 2013 as well as order of issuance of summons dated15.02.2017 passed in Criminal Case No.169 of 2017.

2.5. It was mainly contended on behalf of the accused that thelearned Magistrate had no authority to take cognizance of the offences A

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Aunder the provisions of the Atrocities Act and only Special Court cantake cognizance of the offences. It was submitted that the Court oflearned Magistrate is not a Special Court under the provisions of theAtrocities Act. It was further submitted that the impugned FIR is nothingbut a counterblast to the complaint filed against the husband of thecomplainant and others for the incident happened on 06.09.2013 whereinBthe police was assaulted. It was also submitted on behalf of the accusedthat there was a gross delay in lodging the FIR / complaint on 15.11.2013for the offences alleged to have been committed on 06.09.2013 and thedelay has not been explained. It was further submitted that at the relevanttime Police Officers were discharging their official duties and therefore,Cbefore initiation of any proceedings, a sanction under Section 197 of theCode of Criminal Procedure was required and in absence of such sanctionfrom the competent authority, no prosecution could have been launched/ continued against them.

2.6. The prayer to quash the FIR and the order issuing the summonsDon the aforesaid ground was opposed by the learned counsel for theoriginal complainant. Referring to Section 14 of the Atrocities Act, itwas submitted that the Special Court has power “only for trial” and theSpecial Court cannot take cognizance directly. It was further submittedthat after filing of the summary report, the learned Magistrate directedfurther investigation, whereupon, Dy.Sp submitted summary report afterEinvestigation submitting that the offence has been made out.

2.7. In response, it was submitted on behalf of the accused that inview of the amended Section 14 of the Atrocities Act, the Special Courtcan take direct cognizance of the offence and therefore, now learnedMagistrate is not empowered to take cognizance directly.F

2.8. By impugned judgment and order, the High Court has allowedthe Special Criminal Application and quashed and set aside the FIR aswell as order passed by the learned Magistrate taking cognizance andissuing summons for the Indian Penal Code offences as well as offencesunder the Atrocities Act mainly on the ground that in view of theGamendment to Section 14 of the Atrocities Act, the Special Court cantake cognizance directly and the jurisdiction of the learned Magistratecan be said to be ousted and looking at the allegation in the FIR, inabsence of sanction under Section 197 of the Code of Criminal Procedurefrom the State Government, the concerned Court ought not to have takenHcognizance of the offences.

2.9. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Gujarat quashing and settingaside the entire criminal proceedings / FIR and the order passed by thelearned Magistrate taking cognizance and issuing the summons for theoffences under the Indian Penal Code as well as under the provisions ofAtrocities Act, the original complainant has preferred present appeal.

3.0. Shri Nikhil Goel, learned counsel for the appellant hasvehemently submitted that High Court has misinterpreted andmisconstrued the amendment to Section 14 of the Atrocities Act. It issubmitted that as per the High Court, after amendment to Section 14 ofthe Atrocities Act, cognizance can only be taken by the learned SpecialJudge/Court and therefore, taking cognizance and issuance of summonsby the learned Magistrate can be said to be prohibited by law andconsequently quashing the criminal proceedings / FIR on the aforesaidground is erroneous. It is submitted that apart from the fact that theamendment to Section 14 of the Atrocities Act was brought in the year2016, second proviso to Section 14 (as amended) cannot be read as astandalone provision and must be read with the purpose it seeks toachieve. It is submitted that by inserting second proviso to Section 14,the purpose it seeks to achieve is providing for speedy trial. It is submittedthat amendment does not exclude the provision of Code of CriminalProcedure but only clarify the position that the bar of Section 193 of theCode of Criminal Procedure would not be ipso facto applicable. It issubmitted that it gives a choice to the Investigating Agency to file thereport either before the Magistrate who will commit the matter to theCourt of Special Judge under Section 209 of the Code of CriminalProcedure or to file it directly before the Special Court. It is submittedthat interpretation given by the High Court would add premium to thealleged criminal actions of an accused who would not even be tried forserious offences merely because a final report has been forwarded to awrong forum.

3.1. It is submitted that unlike the old Code, Section 209 of theCode of Criminal Procedure, 1973 does not give any power of inquiry tothe Magistrate and the Magistrate is duty bound to commit a matter fortrial to the Court of Session once it is found triable by the Court ofSession.

3.2 It is submitted that as such and it appears that amendmentwas required in view of the interpretation given to unamended Section AB

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A14 in the judgment of this Court in the case of Rattiram and Others vs.State of Madhya Pradesh reported in (2012) 4 SCC 516.

3.3. It is submitted that even otherwise the irregularity of sendinga final report to a wrong Court can be said to be merely an irregularitywhich does not vitiate the proceedings considering Section 460(e) of theBCode of Criminal Procedure. It is submitted that the rationale behindSection 460(e) is that the entry of an accused in our criminal jurisprudenceonly happen after a cognizance is taken and his first right of objection iscontemplated only at the stage of framing of the charge (subject to theprovisions of bail and search and seizure). It is submitted that the accusedis not affected by the forum which takes cognizance and issues summonsCto him so long as he gets to agitate his rights before the correct forum. Itis submitted that therefore, the impugned judgment and order passed bythe High Court overlooks Section 460(e) of the Code of CriminalProcedure.

3.4. It is submitted that the law laid down relating to cognizanceDmust relate back to the date of commission of the offence which in thiscase is 06.09.2013. It is submitted that cognizance is to be taken of the“offence” and not the offender. It is submitted that therefore, anyamendment which is in the nature of substantive right would only beprospective unless expressly stated to be retrospective. It is submittedthat if Section 14 of the Atrocities Act is to be interpreted to give aEsubstantive right to the accused, then the date of offence becomesrelevant. It is submitted that however if Section 14 of the Atrocities Actis interpreted to be only procedural not affecting the right of an accusedthen the impugned judgment is ipso facto incorrect because it has scuttledthe entire proceedings at the inception on the ground of violation of SectionF14 of the Atrocities Act.

3.5. It is further submitted that even the finding recorded by theHigh Court that there was a delay of two months in lodging the FIR iscontrary to the material on record. It is submitted that the alleged offenceis committed on 06.09.2013 and in fact earlier an attempt was made inGgetting FIR registered on 07.09.2013 i.e. on the next day but the FIRwas not lodged as the accused were Police Officers and thereafter, thecomplainant was constrained to file complaint before the learnedMagistrate which was filed on 13.09.2013 and only after an order dated26.09.2013 of the learned Magistrate, an FIR was registered. It issubmitted that therefore, as such there was no delay at all in lodging theHFIR and therefore, the finding on delay is erroneous and without merit.

3.6. It is further submitted by Shri Nikhil Goel, learned counsel forthe complainant that even bar under Section 197 of the Code of CriminalProcedure would not apply to the acts done which are not part of theofficial duty. It is submitted that this is a case of patent abuse of power.It is submitted that even the issue of sanction is subject to the test ofprejudice and failure of justice. It is submitted that even assuming theprovisions of Section 197 applies, the High Court ought to have directedthe authorities to take sanction and then proceed instead of completelyquashing the case. Making above submissions, it is prayed to quash andset aside the impugned judgment and order passed by the High Courtand direct the learned Trial Court to dispose of the trial in time boundmanner.

4.0. Shri Aniruddha P. Mayee, learned counsel appearing on behalfof the State has supported the appellant.

5.0. Though served, nobody appeared on behalf of the privaterespondent.

6.0. Heard learned counsel appearing on behalf of the appellantand learned counsel appearing on behalf of the State.

7.0. By the impugned judgment and order, the High Court hasquashed and set aside the entire criminal proceedings for the offencesunder Sections 452, 323, 325, 504, 506(2) and 114 of the Indian PenalCode and under Section 3(1)(x) of the Atrocities Act on the ground that(1) in the present case cognizance of the charge-sheet has been takenby the learned Magistrate and thereafter the case was committed to thelearned Court of Session / Special Court and therefore, in view of secondproviso to Section 14 of the Atrocities Act, cognizance could not betaken by the learned Magistrate; (2) That there was a delay in lodgingthe complaint for which there is no explanation given for delay of suchcomplaint; (3) before launching the prosecution, the sanction underSection 197 of the Code of Criminal Procedure has not been obtained ofthe competent authority.

8.0. Therefore, the issue/question posed for the consideration ofthis Court is, whether in a case where cognizance is taken by the learnedMagistrate and thereafter the case is committed to the learned SpecialCourt, whether entire criminal proceedings can be said to have beenvitiated considering the second proviso to Section 14 of the AtrocitiesAct which was inserted by Act 1 of 2016 w.e.f. 26.1.2016?

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A8.1. While considering the aforesaid issue/question, legislativehistory of the relevant provisions of the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act, 1989, more particularly, Section14 pre-amendment and post amendment is required to be considered.Section 14 as stood pre-amendment and post amendment reads as under:B“Section 14. Special Court (Pre amendment): For the purpose B“Section 14. Special Court (Pre amendment): For the purposeof providing for speedy trial, the State Government shall, withthe concurrence of the Chief Justice of the High Court, bynotification in the Official Gazette, specify for each district aCourt of Session to be a Special Court to try the offencesunder this Act”C

“Section 14. Special Court and Exclusive Special Court (Postamendment): (1) For the purpose of providing for speedytrial, the State Government shall, with the concurrence of theChief Justice of the High Court, by notification in the OfficialGazette, establish an Exclusive Special Court for one or moreDDistricts:

Provided that in Districts where less number of cases underthis Act is recorded, the State Government shall, with theconcurrence of the Chief Justice of the High Court, bynotification in the Official Gazette, specify for such Districts,Ethe Court of Session to be a Special Court to try the offencesunder this Act; Provided further that the Courts so established or specifiedshall have power to directly take cognizance of offences underthis Act.”F

8.2. This Court had an occasion to consider Section 14 pre-amendment in the case of Rattiram and Ors (Supra). In the casebefore this Court which was pre-amendment, the learned Sessions Courtstraightway took the cognizance. This Court considered Section 193 ofthe Code of Criminal Procedure and formulated the questions whetherGthe Special Court as constituted under the Atrocities Act is a Court ofSessions; and whether there is a constitutional provision in the Actenabling the said Court to take cognizance. This Court after taking noteof Section 193 of the Code of Criminal Procedure observed that on plainreading of Section 193 of the Code of Criminal Procedure, it is clear thatno Court of Session can take cognizance of any offence as a Court ofH

original jurisdiction except as otherwise expressly provided by the Codeor by any other law for the time being in force. At this stage, it is requiredto be noted that pre-amendment to Section 14 there was no provisionpermitting / authorizing the learned Court / Special Court to takecognizance of offences under the Atrocities Act. Therefore, this Courtformulated the aforesaid questions. At this stage, it is required to benoted that perceiving divergent and contradictory views as regards theeffect and impact of not committing an accused in terms of Section 193the Code of Criminal Procedure in cases where charge-sheet is filedunder Section 3(1)(x) of the Atrocities Act and cognizance is directlytaken by the Special Judge under the Act, a two-Judge Bench thought itfit to refer the matter to a larger Bench and on the basis of the saidreference, the matter was placed before the Bench consisting of threeHon’ble Judges. While referring the matter to the Larger Bench threeconflicting decisions one in the case of State of MP vs. Bhooraji andOrs. reported in (2001) 7 SCC 679, in the case of Moly and Anr. vsState of Kerala reported in (2004) 4 SCC 584 and in the case ofVidyadharan vs. State of Kerala reported in (2004) 1 SCC 215 werenoted. In the case of Bhooraji (supra), it was held by this Court takingaid of Section 465(1) of the Code that when trial has been conducted bythe Court of competent jurisdiction and a conviction has been recordedon proper appreciation of evidence, the same cannot be erased or effacedmerely on the ground that there had been no committal proceeding andcognizance was taken by the Special Court, inasmuch as the same doesnot give rise to failure of justice. On the other hand, in the case of Moly(supra), it was held that conviction by the Special Court is not sustainableif it has suo motu entertained and taken cognizance of the complaintdirectly without the case being committed to it and, therefore, there shouldbe retrial or total setting aside of the conviction, as the case may be.After considering the object and purpose of committal and after takinginto consideration Section 207 (pre-amendment), 207-A (pre-amendment)and 209 of the old Code of Criminal Procedure, 1973, it is observed andheld by this Court that while committing the case to the Court of Sessionunder Section 209 of the Code of Criminal Procedure, in a case wherethe offence is triable exclusively by the Court of Session, the limitedjurisdiction conferred on the Magistrate is only to verify the nature ofthe offence and thereafter if the learned Magistrate is satisfied that theoffences are triable exclusively by the Court of Session, he shall committhe case to the Court of Sessions. While holding so, this Court considered AB

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Athe relevant provisions under the old Code- Code of Criminal Procedure,1898 and the relevant provisions of Code of Criminal Procedure, 1973and after having noted that there is a sea of difference in the proceedingfor commitment to the Court of Session under the old Code and underthe existing Code, it is observed that there is nothing in Section 209 ofthe Code to even remotely suggest that any of the protections as providedBunder the old Code has been telescoped to the existing one. In paras 53to 58, it is observed and held as under:

“53. On a bare perusal of the above quoted provisions, it isplain as day that an exhaustive procedure was enumerated prior tocommitment of the case to the Court of Session. As is evincible,Cearlier if a case was instituted on a police report, the magistratewas required to hold enquiry, record satisfaction about variousaspects, take evidence as regards the actual commission of theoffence alleged and further was vested with the discretion to recordevidence of one or more witnesses. Quite apart from the above, theDaccused was at liberty to cross-examine the witnesses and it wasincumbent on the magistrate to consider the documents and, ifnecessary, examine the accused for the purpose of enabling him toexplain any circumstances appearing in the evidence against himby the prosecution and afford the accused an opportunity of beingheard and if there was no ground for committing the accused personEfor trial, record reasons and discharge him.

54. Thus, the accused enjoyed a substantial right prior tocommitment of the case. It was indeed a vital stage. But, inthe committal proceedings in praesenti, the magistrate is onlyrequired to see whether the offence is exclusively triable byFthe Court of Session. Mr. Fakhruddin, learned senior counsel,would submit that the use of the words “it appears to themagistrate” are of immense signification and the magistratehas the discretion to form an opinion about the case and notto accept the police report.

G55.To appreciate the said submission, it is apposite to refer toSection 207of the 1973 Code which lays down for furnishingof certain documents to the accused free of cost. Section209(a)clearly stipulates that providing of the documents asper Section 207or Section 208is the only conditionHprecedent for commitment. It is noteworthy that after the words, namely, “it appears to the Magistrate”, the words that followare “that the offence is triable exclusively by the Court ofSession”. The limited jurisdiction conferred on the magistrateis only to verify the nature of the offence. It is also worthnoting that thereafter, a mandate is cast that he “shall commit”.

56. Evidently, there is a sea of difference in the proceedingfor commitment to the Court of Session under the old Codeand under the existing Code. There is nothing in Section209of the Code to even remotely suggest that any of theprotections as provided under the old Code has beentelescoped to the existing one

57. It is worth noting that under the Code of CriminalProcedure, 1898, a full-fledged Magisterial enquiry waspostulated in the committal proceeding and the prosecutionwas then required to examine all the witnesses at this stageitself. In 1955, the Parliament by Act 26 of 1955 curtailed thesaid procedure and brought in Section 207Ato the old Code.Later on, the Law Commission of India in its 41st Report,recommended thus:- 18.19. After a careful consideration we are of theunanimous opinion that committal proceedings are largelya waste of time and effort and do not contribute appreciablyto the efficiency of the trial before the Court of Session.While they are obviously time- consuming, they do not serveany essential purpose. There can be no doubt or disputeas to the desirability of every trial, and more particularlyof the trial for a grave offence, beginning as soon aspracticable after the completion of investigation. Committalproceedings which only serve to delay this step, do notadvance the cause of justice. The primary object ofprotecting the innocent accused from the ordeal of asessions trial has not been achieved in practice; and theother main object of apprising the accused in sufficientdetail of the case he has to meet at the trial could beachieved by other methods without going through a verypartial and ineffective trial rehearsal before a Magistrate.We recommend that committal proceedings should beabolished.

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We have reproduced the same to accentuate the change thathas taken place in the existing Code. True it is, the committalproceedings have not been totally abolished but in the presentincarnation, it has really been metamorphosed and the roleof the Magistrate has been absolutely constricted.

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B58. In our considered opinion, because of the restricted roleassigned to the Magistrate at the stage of commitment underthe new Code, the non-compliance of the same and raising ofany objection in that regard after conviction attracts theapplicability of the principle of ‘failure of justice’ and theconvict-appellant becomes obliged in law to satisfy theCappellate court that he has been prejudiced and deprived ofa fair trial or there has been miscarriage of justice. Theconcept of fair trial and the conception of miscarriage ofjustice are not in the realm of abstraction. They do not operatein a vacuum. They are to be concretely established on theDbedrock of facts and not to be deduced from procedural lapseor an interdict like commitment as enshrined under Section193of the Code for taking cognizance under the Act. It shouldbe a manifestation of reflectible and visible reality but not aroutine matter which has roots in appearance sans any reality.Tested on the aforesaid premised reasons, it is well nighEimpossible to conceive of any failure of justice or causationof prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriateto hold that such non-compliance vitiates the trial.”

That thereafter, after observing the above, this Court overruledFthe objection relating to non-compliance of Section 193 of the Code,which eventually has resulted in directly entertaining and takingcognizance by the Special Judge under the Scheduled Castes andtheScheduled Tribes (Prevention of Atrocities) Act, 1989 and observedthat it does not vitiate the trial and on the said ground alone, the convictionGcannot be set aside or there cannot be a direction of retrial. That thereafter,this Court concluded that the decision rendered in Moly (supra) andVidyadharan (supra) have not noted the decision in Bhooraji (supra),a binding precedent, and hence they are per incuriam. At this stage, it isrequired to be noted that in the said decision this Court also consideredin detail the concept of speedy trial vis-a-vis right of a victim and hasHobserved in paras 59, 63, 64 and 65 as under:

“59. At this juncture, we would like to refer to two otherconcepts, namely, speedy trial and treatment of a victim incriminal jurisprudence based on the constitutional paradigmand principle. The entitlement of the accused to speedy trialhas been repeatedly emphasized by this Court. It has beenrecognised as an inherent and implicit aspect in the spectrumof Article 21of the Constitution. The whole purpose of speedytrial is intended to avoid oppression and prevent delay. It is asacrosanct obligation of all concerned with the justicedispensation system to see that the administration of criminaljustice becomes effective, vibrant and meaningful. Theconcept of speedy trial cannot be allowed to remain a mereformality (see Hussainara Khatoon and Ors. v. HomeSecretary,State of Bihar28, Moti Lal Saraf v. State of Jammu& Kashmir29and Raj Deo Sharma v. State of Bihar30).

63. In the case at hand, as is perceivable, no objection wasraised at the time of framing of charge or any other relevanttime but only propounded after conviction. Under thesecircumstances, the right of the collective as well as the rightof the victim springs to the forefront and then it becomesobligatory on the part of the accused to satisfy the court thatthere has been failure of justice or prejudice has been causedto him. Unless the same is established, setting aside ofconviction as a natural corollary or direction for retrial asthe third step of the syllogism solely on the said foundationwould be an anathema to justice.

64. Be it noted, one cannot afford to treat the victim as analien or a total stranger to the criminal trial. The criminaljurisprudence, with the passage of time, has laid emphasison victimology which fundamentally is a perception of a trialfrom the view point of the criminal as well as the victim. Bothare viewed in the social context. The view of the victim isgiven due regard and respect in certain countries. In respectof 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 seethat the victim’s right is protected. A direction for retrial is toput the clock back and it would be a travesty of justice to so ABC

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Adirect if the trial really has not been unfair and there hasbeen no miscarriage of justice or failure of justice.

65. We may state without any fear of contradiction that if thefailure of justice is not bestowed its due signification in acase of the present nature, every procedural lapse or interdictBwould be given a privileged place on the pulpit. It would,with unnecessary interpretative dynamism, have the effectpotentiality to cause a dent in the criminal justice deliverysystem and eventually, justice would become illusory like amirage. It is to be borne in mind that the Legislaturedeliberately obliterated certain rights conferred on theCaccused at the committal stage under the new Code. Theintendment of the Legislature in the plainest sense is that everystage is not to be treated as vital and it is to be interpreted tosubserve the substantive objects of the criminal trial.”

This Court authoritatively concluded that the delay in conclusionDof the trial is direct nexus with the collective cry of the society and theanguish and agony of an accused (quaere a victim). It appears thatobservations made by this Court in the case of Rattiram and Ors.(supra) gave rise to amendment to Section 14 of the Act and it appearsto avoid consumption of time on procedural aspect on committing ofEcase by the Magisterial to Court of Session as per Section 209 of theCode of Criminal Procedure and to avoid any further delay and to havespeedy trial for the offences under the Atrocities Act to preventcommission of offence of Atrocities against the members of the ScheduledCastes and Scheduled Tribes, proviso to Section 14 came to be insertedby Act 1 of 2016, by which, it has been provided that after post amendmentFinsertion of proviso to Section 14 the Special Court so established for thepurpose of providing for speedy trial or specified shall (also) have powerto directly take cognizance of the offences under the Atrocities Act,1989. Therefore, the object and purpose of insertion of Section 14 is toprovide speedy trial for the offences under the Atrocities Act, 1989 andGas observed herein above, to avoid the delay which was taking place bythe committal of the offence by the learned Magistrate to the learnedSpecial Court / Sessions Court.

9. Considering the aforesaid legislative history which brought toinsertion of proviso to Section 14 of the Atrocities Act, by which, evenHthe Special Court so established or specified for the purpose of providing for speedy trial the power to directly to take cognizance of offencesunder the Atrocities Act, 1989, the issue / question posed whether in acase where for the offences under Atrocities Act, the cognizance istaken by the learned Magistrate and thereafter the case is committed tothe Court of Sessions / Special Court and cognizance is not straightwaytaken up by the learned Special Court / Court of Session, whether entirecriminal proceedings for the offences under the Atrocities Act, 1989 canbe said to have been vitiated, as so observed by the High Court in theimpugned judgment and order ?

9.1. On fair reading of Sections 207, 209 and 193 of the Code ofCriminal Procedure and insertion of proviso to Section 14 of the AtrocitiesAct by Act No.1 of 2016 w.e.f. 26.1.2016, we are of the opinion that onthe aforesaid ground the entire criminal proceedings cannot be said tohave been vitiated. Second proviso to Section 14 of the Atrocities Actwhich has been inserted by Act 1 of 2016 w.e.f. 26.1.2016 confers powerupon the Special Court so established or specified for the purpose ofproviding for speedy trial also shall have the power to directly takecognizance of the offences under the Atrocities Act. Considering theobject and purpose of insertion of proviso to Section 14, it cannot be saidthat it is not in conflict with the Sections 193, 207 and 209 of the Code ofCriminal Procedure, 1973. It cannot be said that it takes away jurisdictionof the Magistrate to take cognizance and thereafter to commit the caseto the Special Court for trial for the offences under the Atrocities Act.Merely because, learned Magistrate has taken cognizance of the offencesand thereafter the trial / case has been committed to Special Courtestablished for the purpose of providing for speedy trial, it cannot be saidthat entire criminal proceedings including FIR and charge-sheet etc.are vitiated and on the aforesaid ground entire criminal proceedings forthe offences under Sections 452, 323, 325, 504, 506(2) and 114 of theIndian Penal Code and under Section 3(1)(x) of the Atrocities Act are tobe quashed and set aside. It may be noted that in view of insertion ofproviso to Section 14 of the Atrocities Act and considering the objectand purpose, for which, the proviso to Section 14 of the Atrocities Acthas been inserted i.e. for the purpose of providing for speedy trial andthe object and purpose stated herein above, it is advisable that the Courtso established or specified in exercise of powers under Section14, forthe purpose of providing for speedy trial directly take cognizance of theoffences under the Atrocities Act. But at the same time, as observedherein above, merely on the ground that cognizance of the offences AB

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Aunder the Atrocities Act is not taken directly by the Special Courtconstituted under Section 14 of the Atrocities Act, the entire criminalproceedings cannot be said to have been vitiated and cannot be quashedand set aside solely on the ground that cognizance has been taken by thelearned Magistrate after insertion of second proviso to Section 14 whichconfers powers upon the Special Court also to directly take cognizanceBof the offences under the Atrocities Act and thereafter case is committedto the Special Court / Court of Session.

9.2. In support of the above conclusion, the words used in secondproviso to Section 14 are required to be considered minutely. The wordsused are “Court so established or specified shall have power toCdirectly take cognizance of the offences under this Court”. Theword “only” is conspicuously missing. If the intention of the legislaturewould have to confer the jurisdiction to take cognizance of the offencesunder the Atrocities Act exclusively with the Special Court, in that case,the wording should have been “that the Court so established orDspecified only shall have power to directly take cognizance ofoffences under this Act”. Therefore, merely because now further andadditional powers have been given to the Special Court also to takecognizance of the offences under the Atrocities Act and in the presentcase merely because the cognizance is taken by the learned Magistratefor the offences under the Atrocities Act and thereafter the case hasEbeen committed to the learned Special Court, it cannot be said that entirecriminal proceedings have been vitiated and same are required to bequashed and set aside.

10. Even the aforesaid aspect is also required to be consideredfrom another angle i.e. theory of prejudice to the accused. In the case ofFRattiram and Ors (supra), in which, this Court had an occasion toconsider Section 14 of the Atrocities Act (pre amendment) has specificallyobserved and held that (1) under the Code of Criminal Procedure, 1973in the committal proceedings, the Magistrate is only required to seewhether offence is exclusive triable by the Court of Session; (2) theGlimited jurisdiction conferred on the Magistrate under Section 209 of theCode of Criminal Procedure is only to verify the nature of the offences;(3) after having satisfied of verifying the nature of the offences that theoffences triable exclusively by the Court of Sessions, he shall committhe case to the Court of Sessions; (4) because of restricted role assignedto the Magistrate at the stage of committal under the new Code, theH

non-compliance with the same and raising of objection in that regardafter conviction attracts the applicability of the principles of “failure ofjustice” and the convict becomes obliged in law to satisfy the AppellateCourt that he has been prejudiced and deprived of a fair trial or therehas been miscarriage of justice; (5) it would be a totally inapposite andinappropriate to hold that such non-compliance vitiates the trial.

11. The issue involved in the present appeal is also required to beconsidered from another angle. The accused is to be tried for the offencesunder the Atrocities Act by Special Court / Exclusive Special Courtconstituted under Section 14 of the Atrocities Act. Even those rights arealso available to the victim for the offences under the Atrocities Act inwhich the trial is by the Special Court/Exclusive Special Court constitutedunder Section 14 of the Atrocities Act. Therefore, unless and until thoserights which flow from Section 14 of the Atrocities Act are affected, theaccused cannot make any grievance and it cannot be said that takingcognizance by the learned Magistrate for the offences under the AtrocitiesAct and thereafter to commit the case to the Special Court, he isprejudiced.

12. Even considering Section 460 of the Code of CriminalProcedure, if any Magistrate not empowered by the law to takecognizance of an offence under clause (a) or clause (b) of sub-section(1) of Section 190, takes cognizance, such irregularities do not vitiateproceedings. At the most, it can be said to be irregular proceedings forwhich, it does not vitiate the proceedings. In view of the above and forthe reasons stated above, the view taken by the High Court that as in thepresent case the learned Magistrate has taken cognizance for theoffences under the Atrocities Act and thereafter the case is committedto the learned Special Court and therefore, entire criminal proceedingsare vitiated, cannot be accepted and is unsustainable. If on the aforesaidground entire criminal proceedings are quashed, in that case, it will begiven a premium to an accused who is alleged to have committed theoffence under the Atrocities Act. Assuming for the sake of argumentthat the procedure adopted is irregular, in that case, why should victimwho belonged to Scheduled Castes and Scheduled Tribes community bemade to suffer.

13. Even the impugned judgment and order passed by the HighCourt quashing and setting aside the entire criminal proceedings isunsustainable. The allegation against the accused were for the offences AB

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Aunder the Indian Penal Code also along with for the offences under theAtrocities Act. By the impugned judgment and order, the High Court hasnot only quashed and set aside the proceedings under the Atrocities Actbut for the offences under the Indian Penal Code also, which is notpermissible. We fail to appreciate how the criminal proceedings for theoffences under the Indian Penal Code could have been set aside by theBHigh Court while considering Section 14 of the Atrocities Act.

14. Now, so far as the observation made by the High Court whilequashing and setting aside the entire criminal proceedings that therewas delay of two months in lodging the complaint is concerned, it appearsthat while observing so, the High Court has not at all adverted itself toCthe relevant pleadings and even the case on behalf of the victim /complainant. It is to be noted that date of alleged offence is 6.9.2013. Itwas the specific case on behalf of the victim that an attempt was madein getting FIR registered on 7.9.2013 i.e. on the very next day. But FIRwas not registered, probably might be because the accused were PoliceDOfficers. Be that as it may, even the complaint before learned Magistratewas filed on 13.09.2013 and thereafter after an order was passed by thelearned Magistrate on 26.09.2013 under Section 156(3) of the Code ofCriminal Procedure, the police registered the FIR and started theinvestigation. Therefore, as such, it is not correct to say that the FIRwas lodged after a period of two months and that too without anyEexplanation.

Even otherwise, on the ground of delay in lodging FIR / complaint,the criminal proceedings cannot be quashed in exercise of powers underSection 482 of the Code of Criminal Procedure. The aspect of delay isrequired to be considered during the trial and during the trial when theFcomplainant is examined on oath and a question is put to him/her ondelay and he/she can very well explain the delay in his/her crossexamination. But on the aforesaid ground, entire criminal proceedingcannot be quashed in exercise of powers under Section 482 of the Codeof Criminal Procedure.G

15. Now, so far as the observation made by the High Court that inview of bar under Section 197 of the Code of Criminal Procedure andno sanction was obtained is concerned, the aforesaid also cannot beground to quash criminal proceedings in exercise of powers under Section482 of the Code of Criminal Procedure. Looking to serious allegationsHagainst the Police Officers of misuse of powers and it is alleged that innocent persons residing in the society were beaten and even in theearlier day the phone call was made by the complainant / victim informingthat thieves have come in the society and complaint was made thatnothing is being done despite repeated such incidents and the allegedincident in the present case is in the midnight when again Police Officersalong with additional police staff went to the village and the allegationagainst the accused are with respect to second incident, it is verydebatable whether power under Section 197 of the Code of CriminalProcedure would apply and the acts which are alleged to have beendone by the accused / Police Officers can be said to be part of officialduties. Therefore, at this stage, to quash the entire criminal proceedingsin exercise of powers under Section 482 of the Code of CriminalProcedure is impermissible. Even assuming that the High Court wasright that in absence of sanction under Section 197, the proceedings arevitiated, in that case, the High Court could have directed the authority totake sanction and then proceed, instead of completely quashing the entirecriminal proceedings.

16. In view of the above and for the reasons stated above, theimpugned judgment and order dated 09.05.2019 passed by the HighCourt of Gujarat passed in Special Criminal Application No.5670 of 2017quashing and setting aside the entire criminal proceedings for the offencespunishable under Sections 452, 323, 325, 504(2) and 114 of the IndianPenal Code and under Section 3(1)(x) of the Atrocities Act, in exerciseof powers under Section 482 of the Code of Criminal Procedure r/wArticle 226 of the Constitution of India is hereby quashed and set aside.Now, accused be tried by the learned Special Court having jurisdictionfor the aforesaid offences. Present appeal is allowed to the aforesaidextent.

Divya Pandey

Appeal allowed.

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