Jurisdiction of the Special Judge and the applicability of Section 460 of the Code in relation to irregularities that do not vitiate proceedings.

UMESH CHANDRA TRIPATHI, J.

1. This criminal appeal under Section 14A (1) of The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Act, 1989') has been filed on behalf of the appellants challenging the order dated 21.01.2019 passed by IInd Additional Sessions Judge/Special Judge (S.C./S.T. (P.A.) Act), Etawah, in Complaint Case No. 55 of 2017 (Tarvesh alias Sarvesh v. Ranvir Singh and Another), under Sections 323, 504 and 506 of the Indian Penal Code, 1860 (for short 'IPC') and Section 3(1)(r)(s) of Act, 1989, Police Station-Basrehar, District-Etawah, whereby appellants have been summoned under the aforesaid sections.

2. Heard Sri Rajiv Lochan Shukla, learned counsel for the appellants, Sri Ajay Kumar Pathak, learned A.G.A. for the State of U.P. in opposition and perused the material brought on record.

3. As per prosecution version, complainant/private-respondent Tarvesh alias Sarvesh is a member of the Scheduled Caste. A transformer is installed in his 'khet' (agricultural field). The accused-appellants-Ranvir Singh and Saurabh Yadav used to irrigate their agricultural field by drawing water from the tube well through illegal electric connection from that transformer. In the night of 06.05.2016, while they were irrigating their field by taking illegal electric connection through the transformer, the electric connection became disrupted, due to bluster of wind. They suspected that the complainant or his family members had disrupted the electricity connection. In the next morning i.e. on 07.05.2016 at about 07.30 P.M., accused-appellant-Ranvir Singh Yadav and Saurabh Yadav came into the field of complainant/private-respondent Tarvesh alias Sarvesh where he was working and started abusing and assaulting the complainant by blunt object 'lathi-danda' (wooden stick) and kicks and fists, with the allegation that he had deliberately disrupted the electric connection from the transformer situated in his field. On alarm being raised by the complainant, Nathuram and Adiram and other persons came on the spot and rescued the complainant, where after the accused went away, threatening the complainant to face dire consequences if he further dares to disrupt their electric connection. With the above allegation, the complainant/private-respondent Tarvesh alias Sarvesh lodged an application under Section 156(3) of the Code of Criminal Procedure, 1973 (for short 'Code') before the court and by the order of court, a case was registered on 23.07.2016 and the matter was investigated by the police.

4. After investigation, on 13.08.2016, the police submitted final report (F.R. No. 18 of 2016) against the accused-appellants. Against the F.R., the complainant/private-respondent Tarvesh alias Sarvesh filed protest petition on 22.11.2017. On the protest petition, enquiry was made by the trial court, where after on 27.11.2017, the trial court treated the aforesaid protest petition as complaint and directed for recording the statement of the complainant Tarvesh alias Sarvesh under Section 200 of the Code. Thereafter, statement of complainant Tarvesh alias Sarvesh under Section 200 of the Code and that of his witnesses-Adiram and Nathuram under Section 202 of the Code were recorded and the impugned summoning order has been passed.

5. Learned counsel for the accused-appellants contended that :-

(a) At the time of taking cognizance under Section 190(1)(a) of the Code, the Magistrate should consider the material collected during the course of investigation;

(b) Existing Special Judge (S.C./S.T.(P.A.) Act), Etawah has no jurisdiction to take cognizance directly for the offences under the Act, 1989 ; and

(c) Offence under Act, 1989 is triable by the court of sessions.

Accordingly, as per provision of Section 202 of the Code, it is the duty of the Special Judge to call upon the complainant to produce all his witnesses of fact and examine them on oath. Learned Special Judge has not examined the doctor who examined the complainan