2001(4) Crimes 190 (SC)
Supreme Court of India
(From Madhya Pradesh High Court)
K.T. Thomas and K.G. Balakrishnan, JJ.
State of Madhya Pradesh —Appellant
versus
Bhooraji & Ors. —Respondents
Criminal Appeal No. 851 of 2001
(Arising out of SLP (Crl.) No. 616 of 2001)
Decided on 24-8-2001
Counsel for Parties :
For the Appellant : Sakesh Kumar, Uma Nath Singh and Ms. Bharti Tyagi, Advocates.
For the Respondents : Sushil Kumar Jain, A.P. Dhamija and Ms. Anjali Doshi, Advocates.

Important Point
Although in this case Specified Court u/s 14 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act should have taken cognizance on the case being committed to it by a Magistrate but that is only a procedural lapse which has neither shown to have prejudiced the accused nor affected the competence of Specified Court. The lapse was because of change in legal view about applicability of Section 193 Cr.P.C. to SC/ST Act proceeding. The High Court should not have quashed the order of conviction and sentence of Specified Court only for this lapse. High Court should have given the decisions on merits. Case remanded to High Court for decision on merits in accordance with law and the observations of Apex Court in this case.

Headnote:Criminal Procedure Code, 1973 —Sections 193, 465(1) and 462—­Applicability of Committal Procedure to SC/ST Act—I.P.C. 1860—Sections 302 r/w 149—Offences under—Read with offence u/s 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act—Case started in January 1992 against respondents for an incident involving murder of one and injuries to 3 —Addl. Sessions Judge Dhar (MP) which was the Specified Court u/s 14 of S/C & S/T Act taking cognizance in accordance with view of M.P.H.C. that cognizance is possible as per law then prevailing—Respondents convicted under on 23.8.1996—Appeal against to High Court—M.P. High Court view changed by ­Supreme Court in 2000 that cognizance of ­offence under SC/ST Act should be taken on committal by Magistrate—High Court quashing conviction and sentence and remanding for de-novo trial through Magistrate—Appeal to Supreme Court by State—Whether High Court was right? (No)—It is a case of procedural ­irregularity—No prejudice is shown to have been caused to accused—Case remanded to High Court for decision on merits in accordance with law—Case law referred—Meaning of “Competent Court of jurisdiction” explained.

       Held : The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving ­offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert “a failure of justice”. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings , by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting “a failure of justice”. The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles to reach the court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation. (Para 8)

       It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified sessions court took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to the special court because that court being essentially a court of sessions can take cognizance of any offence­ only then. But if a specified sessions court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said course? It is apposite to remember that during the period prior to the Code of Criminal Procedure 1973, the committal court, in police charge-sheeted cases, could examine material witnesses, and such records also had to be sent over to the court of sessions along with the committal order. But after 1973, the committal court, in police charge-sheeted cases cannot examine any witness at all. The magistrate in such cases has only to commit the cases involving offences exclusively triable by the court of sessions. Perhaps it would have been possible for an accused to raise a contention before 1973 that skipping committal proceedings had deprived him of the opportunity to cross-examine witnesses in the committal court and that had caused prejudice to his defence. But even that is not available to an accused after 1973 in cases charge-sheeted by the police. We repeatedly asked the learned counsel for the accused to tell us what advantage the accused would secure if the case is sent back to the magistrate court merely for the purpose of retrans­mission of the records to the sessions court through a committal order. We did not get any satisfactory answer to the above query put to the counsel.(Paras 17 & 18)

       Held further : The expression “a court of competent jurisdiction” envisaged in Section 465 is to denote a validly constituted court conferred with jurisdiction to try the offence of offences. Such a court will not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non-compliance of the procedural requirement. The inability to take cognizance of an offence without a committal order does not mean that a duly constituted court became an incompetent court for all purposes. If objection was raised in that court at the earliest occasion on the ground that the case should have been committed by a magistrate, the same specified court has to exercise a jurisdiction either for sending the records to a magistrate for adopting committal proceedings or return the police report to the Public Prosecutor or the police for presentation before the magistrate. Even this could be done only because the court has competence to deal with the case. Sometimes that court may have to hear arguments to decide that preliminary issue. Hence the argument advanced by the learned counsel on the strength of the aforesaid decisions is of no avail. The bar against taking cognizance of certain offences or by certain courts cannot govern the question whether the Court concerned is a “a Court of competent jurisdiction”, e.g., Courts are debarred from taking cognizance of certain offences without sanction of certain authorities. If a Court took cognizance of such offences, which later found to be without valid sanction, it would not become the test or standard for deciding whether that court was “a Court of competent jurisdiction.” It is now well settled that if the question of sanction was not raised at the earliest opportunity the proceedings would remain unaffected on account of want of sanction. This is another example to show that the condition precedent for taking cognizance is not the standard to determine whether the court concerned is “a Court of competent jurisdiction.” (Paras 21 & 22)

       Held finally : We conclude that the trial held by the sessions court reaching the judgment impugned before the High Court in appeal was conducted by a court of competent jurisdiction and the same cannot be erased merely on account of a procedural lapse, particularly when the same happened at a time when the law which held the field in the State of Madhya Pradesh was governed by the decision of the Full Bench of the Madhya Pradesh High Court (supra). The High Court should have dealt with the appeal on merits and on the basis of the evidence already on record. To facilitate the said course we set aside the judgment of the High Court impugned in this appeal. We remit the case back to the High Court for disposal of the appeal afresh on merits in accordance with law and subject to the observations made above. (Para 23)