What is the effect of a trial held by a court of Sessions consequent to cognizance taken in breach of the stipulations of Sec.193 of the Code of Criminal Procedure? Does such breach ipso facto vitiate the trial? Is there an conflict between the two decisions of the Supreme Court reported in Vidyadharan v. State of Kerala (2004) (1) K.L.T. 105) and State of M.P. v. Bhooraji ((2001) 7 SCC 679)? These questions of contextual relevance are raised in this appeal.

2. The prosecution alleged that the petitioner had committed the offence punishable under Sec. 323 of the Indian Penal Code and Sec.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’). The final report was submitted by the police before the Special Court notified under Sec.14 of the SC/ST P.A. Act.

3. Cognizance was taken by the Sessions Court without insisting on committal of the case, obviously on the basis of a decision of the Full Bench of the Kerala High Court reported in Hareendran v. Sarada (1995 (1) K.L.T. 231). The accused denied the offence alleged against him. Thereupon, P.Ws.1 to 10 were examined and Exts.P1 to P11 were marked. The accused took up a defence of total denial. He contended that P.Ws.5 to 7 were not speaking the truth. They were close friends and interested. PW5 has a motive against the accused. In these circumstances, it was contended that the accused is entitled for an acquittal. No defence evidence was adduced.

4. The learned Sessions Judge, on an anxious consideration of all the relevant inputs, came to the conclusion that it was safe to accept and act upon the evidence of P.Ws.5,6 and 7. Their evidence read along with Ext.P7-First Information Statement as also Exts. P5 and P6 wound certificates do convincingly establish the offence punishable under Sec. 323 of the IPC, it was held. It was further held that the evidence of P.Ws.5 to 7 is sufficient to establish the offence punishable under Sec.3(1)(x) of the SC/ST P.A. Act also. Accordingly, the learned Sessions judge proceeded to pass the impugned judgment.

5. Before me, the learned counsel for the appellant and the learned Public Prosecutor have advanced detailed arguments. The learned counsel for the appellant, first of all, contends that the trial against him is vitiated inasmuch as the learned Sessions judge had taken cognizance, on the basis of the final report submitted by the police, in violation of the provisions of Sec.193 of the Criminal Procedure Code. Inasmuch as cognizance taken is bad in law, the impugned judgment may be set aside and the accused may be acquitted, contends the learned counsel for the appellant.

6. At the out set, I must note that the request cannot legally be accepted. If the trial held is bad for the reason that Sec. 193 of the Criminal Procedure Code has not been complied with, certainly the best prayer that the accused can aspire to make to this Court is to set aside the impugned judgment and to issue a direction to the competent court to dispose of the case in accordance with law. If the learned Sessions Judge has no jurisdiction to convict, he cannot obviously have jurisdiction to acquit also. In these circumstances, the prayer for acquittal on the ground that Sec.193 of the Criminal Procedure Code has not been complied with is obviously erroneous and unsustainable.

7. There can be no doubt that the procedure adopted by the learned Sessions Judge is incorrect. Though at the time when cognizance was taken, such cognizance taken directly without committal under Sec.193 of the Criminal Procedure Code was fully justified by the Full Bench decision of the Kerala High Court in Hareendran’s case – 1995 (1) K.L.T. 231 (cited supra), the later decisions of the Supreme Court have made it absolutely clear that such direct cognizance, without complying with Sec.193, cannot be taken as the notified Special Court under Sec. 14 is only a Court of Session. The decisions reported in Gangulla Ashok v. State of