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1992 Supreme(Pat) 93
PATNA HIGH COURT
S.B.Sinha and N.P.Singh JJ.
Jhagru Mahto
Versus
State Of Bihar
Criminal Writ Jurisdiction No. 509 of 1991 ;
Decided On : MARCH 16, 1992
Headnote:Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Sec. 3 - the aim and object of the Act is to prevent atrocity against the members belonging to the scheduled castes and scheduled tribes and for speedy trial for offences against them-it has net been provided that all the offences shall be cognizable in terms of provisions of sec. 3-the punishments may vary from 6 months to death - certain offences u/s 3 (1) and all offences, u/s 3 (2) would be cognizable and F.I.R. may be lodged whereas for commission of offences for less than three years only complaint petition can be filed-the entire procedure for enquiry and investigation laid down in criminal procedure will have to be followed. (Paras 8, 10 & 15)
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Sec. 4 & 14 and Sec. 2 (g), 4 (2), 5, 193 of the Code of Cri. Procedure, 1973-Offence relating to atrocity on a member of scheduled caste-Special Judge taking cognizance of the offence on complaint filed before C. J. M. who transferred the complaint to him-propriety of - procedure to be adopted by the Special Court for trial of offence not provided under the Act-Sec. 14 merely provides for constitution of Special Court under the Act and the general procedure laid down under the Code have to be followed in terms of Sec. 4 (2) of the Act and jurisdiction to try case would vest in Special Courts-Sec. 193 of the Code prohibits a court of sessions to take cognizance of offence unless the case is committed to it by a Magistrate-power to take cognizance is to be exercised only by the Magistrate of 1st Class and even if the cognizance is taken by any C.J.M. can be made over for enquiry or trial to any competent Magistrate Subordinate to him-as no power has been conferred upon the special Court to take cognizance order can not be sustained-direction issued to C. J. M. to examine the complaint afresh. (7, 11, 12, 14, 16 & 18)
S.B.Sinha, J.
1. In this application the petitioner has sought for issuance of a writ of or in the nature of mandamus directing the quashing of a prosecution u/s. 3(1)(xi) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter to be referred to as the said Act). in complaint case No. 795(c) of 1991/20-C of 1991 pending in the Court of 1st Additional District and Sessions Judge, Bettiah, West Champaran which is the designated special Court for the purpose of aforementioned Act."
2. In view of the point involved in this application, it is not necessary to notice the fact of the matter in great details.
3. The respondent No. 3 filed an application before the Chief Judicial Magistrate, West Champaran alleging inter alia therein that the petitioner had on 27.8.1991 at about 9 p.m. trespassed into her house and convicted rape on her. The Chief Judicial Magistrate appears to have upon perusal of the complaint petition come to the opinion that the allegations made therein disclosed commission of offences under the said Act. He therefore sent the complaint petition to the Court of Special Judge constituted u/s. 14 of the said Ad.
4. On receipt of the said complaint petition, the respondent No. 3 was directed to appear on 29.8.1991 and on that date the complainant was examined on solemn affirmation where after Mukhia of Mangalpur Gudaria Gram Panchayat was directed to enquire into the allegation made therein or submit his report on or before 12.9.1991. As the report warrior submitted by Mukhia, till 28.9.1991, the respondent No. 3 filed an application for recalling the order of enquiry from Mukhia and. entrust the same to any other persons. However, on 1.10.1991, the report of the Mukhia was received.
5. The respondent No. 2 thereafter by an order dated 10.10.1991 took cognizance as against the petitioner under the aforementioned provisions of the said Act.
6. Mr. P.N. Pandey, learned counsel appearing on behalf of the petitioner raised a short question in support of this application. The learned counsel submitted that in view of sec. 193 of the Code of Criminal Procedure, the Special Court being a Court of session is precluded from taking cognizance of an offence as an original Court and thus the order taking cognizance of the petitioner must be held to be vitiated in law.
7. The only question which arises for consideration is as to whether u/s. 14 of the said Act the respondent No. 2 was empowered to take cognizance of an offence against the petitioner in terms of the provisions of the said Act.
8. The said Act was enacted to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes, to provide for special Courts for the trial of such offences and for the relief and rehabilitation of victims of such offences and for matters connected there the or incidental there to.
Sec. 2(a) of the said Act defines atrocity to mean an offence punishable u/s. 3.
Sec. 2(d) defines special Court means a Court of Sessions specified as a Special Court in sec. 14.
Sec. 2 (f) of the said Act provides that words and expression used but not defined in the said Act and defined in the Code or the Indian Penal Code shall have the meanings assigned to them respectively in the Code, or as the case may be, in the Indian Penal Code.
Sec. 3 enlists the offences committed by any person not being a member of scheduled castes or scheduled tribe. The punishment provided for an offence mentioned in Sub-sec. (1) of sec. 3 would not less than sixmonths but may extend to five years and the fine;
Different clauses mentioned in Sub-sec. (2) of section prescribes different punishments, including punishment for life imprisonment and death.
Sec. 6 provides for application of certain provisions of the Indian Penal Code i.e., the provisions of section 34, Chapter III, Chapter IV, Chapter V, Chapter VA, Sec. 149 and Chapter XXIII of we Indian Penal Code so far as they apply
