The authority of the Magistrate to direct investigation at the pre-cognizance stage in cases exclusively triable by the Court of Session.

R. N. BISWAL, J.

( 1 ) THE petitioner has filed this case under S. 482, Cr. P. C. with a prayer to quash G. R. Case No. 229 of 2003 arising out of I. C. C. No. 51 of 2003 pending in the Court of S. D. J. M. , Udala.

( 2 ) AS per the petition, on 23-7-2003 one phulamani Behera filed I. C. C. No. 51 of 2003 (Annexure 1) before the learned S. D. J. M. , udala making some false and frivolous allegations against the petitioner. Without examining the complainant or her witnesses, on 25-11-2003 the learned S. D. J. M. simply forwarded the complaint petition to the Officer-in-charge of Khunta Police Station through the C. S. I. , Udala under S. 156 (3), cr. P. C. for registration and investigation of the case with a direction to submit the F. l. R. by 4-11-2003. Pursuant to the said direction, the O. I. C. , Udala Police Station treating the complaint petition as F. I. R. , registered p. S. Case No. 76 of 2003 under Ss. 341/323/294/354/506 (2), I. P. C. read with s. 3 of S. C. and S. T. (P. A.) Act and sent it to the Court which was registered as G. R. Case no. 229 of 2003 (Annexure-2 ). It appears from Annexure-2 that since the alleged offences includes offence under S. 3 of S. C and s. T. (P. A.) Act, which cannot be investigated by any Police Officer below the rank of d. S. P. , the Officer-in-Charge, Khunta, Police station did not take up investigation. The present case has been filed to quash the G. R. Case No. 229 of 2003 arising out of i. C. C. No. 51 of 2003 as mentioned earlier.

( 3 ) THE learned counsel appearing for the petitioner submitted that the offence under 3. 3 of S. C. and S. T. (P. A.) Act being triable by the Special Court which is essentially a court of Session, the learned S. D. J. M. himself ought to have examined the witnesses produced by the complainant instead of sending the complaint petition to the O. I. C. of Khunta Police Station for investigation as required under S. 202, Cr. P. C. Since he violated the mandatory provision of law, G. R. Case No. 229 of 2003 arising out of I. C. C. No. 51 of 2003 of the Court of S. D. J. M. Udala ought to be quashed. He cited the decision in Moly v. State of Kerala, reported in AIR 2004 SC 1890 : (2004 Cri LJ 1812)where the Apex Court held that a special court under the S. C. and S. T. (P. A.) Act is essentially a Court of Session. In view of the decision of the Apex Court, it is held that special Court under the S. C. and S. T. (P. A.)act is essentially a Court of Session.

( 4 ) PROVISO (a) to sub-section (1) of S. 202, cr. P. C. postulates that in a complaint case exclusively triable by the Court of Session, the Magistrate cannot direct a Police Officer to investigate into it, for the purpose of deciding whether or not there is sufficient ground for proceeding. Again proviso to subsection (2) of S. 202, Cr. P. C. ordains that if it appears to the Magistrate that the offence complained of is exclusively triable by the court of Session, he shall ask the complainant to produce all his witnesses and examine them.

( 5 ) IN the decisions in Rosy v. State of kerala, reported in (2000) 18 OCR (SC) 490 : (2000 Cri LJ 930) and Dibakar Singh v. Birakishore Jarika, (2004) 2 OLR 67 as cited on behalf of the petitioner, the Apex Court and this Court respectively have held that in a complaint case exclusively triable by the Court of Session the Magistrate should examine all the witnesses of the complainant before issuing process against the accused. In the decision Rosy and another (supra), the Apex Court further held that in such a case the Magistrate is required to conduct the enquiry himself and cannot direct investigation by police.

( 6 ) IN the case at hand, the S. D. J. M. , udala directed the O. I. C. . Khunta Police Station under S. 156 (3), Cr. P. C. to investigate into the case. As found from the petition under S. 482, Cr. P. C. , the S. D. J. M. gave such direction without application of mind, i. e. , without taking cognizance. Direction given to the police under S.