The legislative change which has been noticed in the earlier
part of the judgment would clearly show that now, by the
Amendment Act, 2015 only, the Special Courts have been
empowered to take cognizance directly, of the offences
under the Act of 1989. It has been held so because the
Courts of Session are the Special Courts constituted under
Section 14 of the Act of 1989.
19.The erstwhile State of Madhya Pradesh in exercise of power
conferred under Section 14 of the Act of 1989 by
notification dated 26-10-1995 notified the Sessions Judge of
each of the districts to exercise power and jurisdiction under
the Act of 1989. Thereafter, the State of Chhattisgarh by its
notification dated 4-2-2015 in exercise of power conferred
under Section 14 of the Act of 1989 with the concurrence of
Hon'ble the Chief Justice of this Court has established the
Exclusive Special Court at Raipur for trial of the offence
under the said Act for Raipur District.
20.Thus, the trial Magistrate was not a Special Court notified
by the State Government within the meaning of Section 14
of the Act of 1989 read with Section 193 of the CrPC.
Therefore, learned Judicial / trial Magistrate had absolutely
no jurisdiction to entertain and take cognizance of the
offence under Section 3 (1) (x) of the Act of 1989. Even
otherwise, the Special Courts constituted under Section 14
of the Act of 1989 have been empowered to take cognizance
of the offence directly under this Act with effect from 1-1-
2016 and learned Magistrate took cognizance of the
offences under the Act of 1989 on 3-5-2014. Therefore, by
no stretch of imagination, the impugned order directly
taking cognizance of the offence under Section 3 (1) (x) of
the Act of 1989, can be held to be the valid exercise of
jurisdiction by learned trial Court, rather it is a case of
exercise of jurisdiction by learned Magistrate not vested in it
by law and it is held to be without jurisdiction and without
authority of law.
21.Accordingly, it is held that the order dated 3-5-2014 passed
by the trial Magistrate directly taking cognizance of the
offence under Section 3 (1) (x) of the Act of 1989 is without
jurisdiction and without authority of law and runs contrary
to Section 14 of the Act of 1989 read with Section 193 of
the CrPC and it is accordingly quashed.
HEAD NOTE
The trial Magistrate / Judicial Magistrate has no jurisdiction to
directly take cognizance of the offence under the provisions of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, it is the Special Court under Section 14 of
the Act of 1989 who has jurisdiction under the Act of 1989.
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No.112 of 2015
Smt. Achla D Sapre,
V
Smt. Asha Mahilkar (Rajput),
Hon'ble Shri Justice Sanjay K. Agrawal
Dated:25/02/2016
Citation:2016 CRLJ3313 Chhatis
1. The splendid question of law that emanates for
consideration in this writ petition is whether the trial
Magistrate can directly take cognizance of the offence
punishable under the provisions of Section 3 (1) (x) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 or only it is the Special Court
constituted under Section 14 of the Act of 1989.
2. Invoking the writ jurisdiction of this Court under Article
226/227 of the Constitution of India, the petitioner herein
seeks to challenge legality, propriety and correctness of the
order dated 15-4-2015 passed in Criminal Revision
No.227/2014 by which learned Special Judge, Raipur has
affirmed the order passed by the trial Magistrate dated 3-5-
2014 in Criminal Complaint Case No.7859/2014, whereby
and whereunder learned Judicial Magistrate First Class,
Raipur has taken cognizance against the petitioner for
offence punishable under Section 3 (1) (x) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short 'the Act of 1989').
3. Respondent No.1 herein preferred a complaint under
Section 200 of the CrPC for offence under Section 3 (1) (x)
of the Act of 1989 against the petitioner herein stating inter
alia that the petitioner, on the date of incident, has
intentionally insulted / intimidated respondent No.1 with
intent to humiliate knowing fully well that respondent No.1
is a member of Scheduled Caste and thereby committed the
offence under the Act of 1989. Learned trial Magistrate by
its order dated 3-5-2014 after recording the evidence of
respondent No.1 / complainant and his witnesses, took
cognizance of offence under Section 3 (1) (x) of the Act of
1989 against the petitioner and directed for issuance of
summon to the petitioner. Feeling aggrieved against the
order passed by the trial Magistrate, the petitioner herein
preferred a criminal revision bearing Cr.Rev.No.227/2014
before the Court of Session.
4. The Court of Session by the impugned order dated 15-4-
2015 dismissed the revision petition holding that by the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Amendment Ordinance, 2014 (for short 'the
Ordinance of 2014'), which came into force with effect from
4-3-2014, the jurisdiction to take direct cognizance was
conferred to the Special Judge/Special Court, but the
jurisdiction of the trial Magistrate to directly entertain
complaint was not specifically barred, therefore, learned
trial Magistrate was fully justified in entertaining and taking
cognizance of offence under Section 3 (1) (x) of the Act of
1989.
5. Impugning legality, correctness and otherwise of the order
passed by learned trial Magistrate duly affirmed by the
Court of Session, the petitioner herein/accused has preferred
this writ petition under Article 226/227 of the Constitution
of India stating inter alia that under the Act of 1989, by
virtue of Section 14 of the Act of 1989, jurisdiction and
power to take cognizance has been specifically conferred to
the Special Court as defined in Section 2 (d) of the Act of
1989 which states that Special Court means a Court of
Session specified as a Special Court in Section 14 of the Act
of 1989, and learned trial Magistrate is not empowered to
take cognizance and therefore learned trial Magistrate has
no power and jurisdiction to take cognizance of offence
under Section 3 (1) (x) of the Act of 1989 and learned
Sessions Judge has also perpetuated the illegality by
overlooking the fact that no such power has even been
conferred by the Ordinance of 2014 to the trial Magistrate
and it has only been conferred to the Special Court by the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015, which came into force
with effect from 1-1-2016 and therefore, the impugned order
deserves to be set aside.
6. Return has been filed on behalf of respondent No.1
opposing the writ petition and stating inter alia that the order
passed by learned trial Magistrate taking cognizance of the
offence which was affirmed by the Court of Session is a
well merited order and no interference is called for in
exercise of jurisdiction under Article 227 of the Constitution
of India.
7. Mr. Kishore Bhaduri, learned counsel appearing for the
petitioner, while making scathing attack on the order of
learned Magistrate affirmed by the Court of Session, would
submit that the Special Court as envisaged under Section 14
of the Act of 1989 has been defined in Section 2 (d) which
means a Court of Session specified as a Special Court in
Section 14, by a notification in the Official Gazette issued
by the State Government with the concurrence of the Chief
Justice of the High Court for each district. He would further
submit that the State Government in exercise of power
conferred under Section 14 of the Act of 1989, specified for
each of the districts a Court of Session to be the Special
Court to try the offence under this Act. He would also
submit that the order dated 3-5-2014 has been passed by
learned trial Magistrate which is not the Court specified by
the State Government in exercise of power conferred under
Section 14 of the Act of 1989, as the State Government has
only notified the Court of Session to be a Special Court to
try the offence under the Act of 1989 and therefore the
impugned order passed by learned Sessions Judge affirming
the order passed by the Magistrate deserves to be set aside.
8. Mr. Ankit Singhal, learned counsel appearing for respondent
No.1 / complainant, would submit that learned Magistrate is
absolutely justified in entertaining the complaint and taking
cognizance of offence under Section 3 (1) (x) of the Act of
1989 and learned Sessions Judge is justified in dismissing
the revision finding no merit.
9. I have heard learned counsel for the parties and bestowed
my thoughtful considerations to the submissions made by
the other side herein-above and also gone through the record
with utmost circumspection.
10.The Act of 1989 has been constituted to prevent the
Commission of offences of atrocities against the members
of the Scheduled Castes and the Scheduled Tribes, to
provide for special courts for the trial of such offences and
for the relief and rehabilitation of the victims of such
offences. The term “Special Court” is defined in Section 2
(d) of the Act of 1989 and Section 14 speaks about the
constitution of Special Court which states as under: -
“14. Special Court.—For the purpose of
providing for speedy trial, the State
Government shall, with the concurrence of the
Chief Justice of the High Court, by notification
in the Official Gazette, specify for each district
a Court of Session to be a Special Court to try
the offences under this Act.”
11.The Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Amendment Ordinance, 2014 was
promulgated on 4-3-2014 to amend the Act of 1989, of
which Section 14 provides as under: -
“14. (1) For the purpose of providing for
speedy trial, the State Government shall, with
the concurrence of the Chief Justice of the
High Court, by notification in the Official
Gazette, establish an Exclusive Special Court
for one or more Districts:
Provided that in Districts where less
number of cases under this Ordinance is
recorded, the State Government shall, with the
concurrence of the Chief Justice of the High
Court, by notification in the Official Gazette,
specify for such Districts, the Court of Session
to be a Special Court to try the offences under
this Ordinance:
Provided further that the Courts so
established or specified shall have power to
directly take cognizance of offences under this
Ordinance.
(2) It shall be the duty of the State
Government to establish adequate number of
Courts to ensure that cases under this
Ordinance are disposed of within a period of
two months, as far as possible.
(3) In every trial in the Special Court or the
Exclusive Special Court, the proceedings shall
be continued from day-to-day until all the
witnesses in attendance have been examined,
unless the Special Court or the Exclusive
Special Court finds the adjournment of the
same beyond the following day to be
necessary for reasons to be recorded in
writing:
Provided that when the trial relates to an
offence under this Ordinance, the trial shall, as
far as possible, be completed within a period
of two months from the date of filing of the
charge sheet.”
12.The above-stated Section 14 of the Ordinance of 2014
would show that by the aforesaid Ordinance, jurisdiction has
been conferred to the Special Courts to directly take
cognizance of offences under the Act of 1989 as amended
by the Ordinance of 2014.
13.The life of the Ordinance was six months and thereafter, it
expired. The Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Amendment Act, 2015 came into
force with effect from 1-1-2016 of which Section 14 (1)
provides as under: -
“14. Special Court and Exclusive Special
Court.—(1) For the purpose of providing for
speedy trial, the State Government shall, with
the concurrence of the Chief Justice of the
High Court, by notification in the Official
Gazette, establish an Exclusive Special Court
for one or more Districts:
Provided that in Districts where less
number of cases under this Act is recorded, the
State Government shall, with the concurrence
of the Chief Justice of the High Court, by
notification in the Official Gazette, specify for
such Districts the Court of Session to be a
Special Court to try the offences under this
Act:
Provided further that the Courts so
established or specified shall have power to
directly take cognizance of offences under this
Act.”
14.By the aforesaid Amendment, again it has been reiterated
that the Special Courts shall have power to directly take
cognizance of offences under this Act. Keeping in view the
legislative changes brought in and incorporated in the Act of
1989, it is appropriate to take note of Section 193 of the
CrPC. Section 193 of the CrPC reads as follows: -
“193. Cognizance of offences by Courts of
Session.—Except as otherwise expressly
provided by this Code or by any other law for
the time being in force, no Court of Session
shall take cognizance of any offence as a Court
of original jurisdiction unless the case has
been committed to it by a Magistrate under
this Code.”
15.On a careful reading of the aforesaid provision, it is quite
vivid that the Court of Session can take cognizance of any
offence as a Court of original jurisdiction except as
otherwise expressly provided by the Code or by any other
law for the time being in force only if the case has been
committed to it by a Magistrate.
16.In a decision in Gangula Ashok and another v. State ofW.P.
A.P.1
, Their Lordships of the Supreme Court considered the
question whether “a Special Court” under the Act of 1989
can take cognizance of any offence without the case being
committed to that Court, and resolving the controversy,
Their Lordships held as under: -
“10. Section 193 of the Code has to be
understood in the aforesaid backdrop. The
section imposes an interdict on all Courts of
Session against taking cognizance of any
offence as a court of original jurisdiction. It
can take cognizance only if “the case has been
committed to it by a Magistrate”, as provided
in the Code. Two segments have been
indicated in Section 193 as exceptions to the
aforesaid interdict. One is, when the Code
itself has provided differently in express
language regarding taking of cognizance, and
the second is when any other law has provided
differently in express language regarding
taking cognizance of offences under such law.
The word “expressly” which is employed in
Section 193 denoting those exceptions is
indicative of the legislative mandate that a
Court of Session can depart from the interdict
contained in the section only if it is provided
differently in clear and unambiguous terms. In
1 (2000) 2 SCC 504W.P.(Cr.)No.112/2015
Page 12 of 16
other words, unless it is positively and
specifically provided differently no Court of
Session can take cognizance of any offence
directly, without the case being committed to it
by a Magistrate.
11. Neither in the Code nor in the Act is there
any provision whatsoever, not even by
implication, that the specified Court of Session
(Special Court) can take cognizance of the
offence under the Act as a court of original
jurisdiction without the case being committed
to it by a Magistrate. If that be so, there is no
reason to think that the charge-sheet or a
complaint can straight away be filed before
such Special Court for offences under the Act.
It can be discerned from the hierarchical
settings of criminal courts that the Court of
Session is given a superior and special status.
Hence we think that the legislature would have
thoughtfully relieved the Court of Session
from the work of performing all the
preliminary formalities which Magistrates
have to do until the case is committed to the
Court of Session.
16. Hence we have no doubt that a Special
Court under this Act is essentially a Court of
Session and it can take cognizance of the
offence when the case is committed to it by theW.P.(Cr.)No.112/2015
Page 13 of 16
Magistrate in accordance with the provisions
of the Code. In other words, a complaint or a
charge-sheet cannot straight away be laid
down before the Special Court under the Act.”
17.Same proposition has been reiterated by the Supreme Court
in State of M.P. v. Bhooraji2
and Rattiram and others v.
State of Madhya Pradesh Through Inspector of Police3
that Special Court can take cognizance of the offence under
the Act of 1989 when it is committed to that Court.
18.The legislative change which has been noticed in the earlier
part of the judgment would clearly show that now, by the
Amendment Act, 2015 only, the Special Courts have been
empowered to take cognizance directly, of the offences
under the Act of 1989. It has been held so because the
Courts of Session are the Special Courts constituted under
Section 14 of the Act of 1989.
19.The erstwhile State of Madhya Pradesh in exercise of power
conferred under Section 14 of the Act of 1989 by
notification dated 26-10-1995 notified the Sessions Judge of
each of the districts to exercise power and jurisdiction under
the Act of 1989. Thereafter, the State of Chhattisgarh by its
2 (2001) 7 SCC 679
3 (2012) 4 SCC 516
notification dated 4-2-2015 in exercise of power conferred
under Section 14 of the Act of 1989 with the concurrence of
Hon'ble the Chief Justice of this Court has established the
Exclusive Special Court at Raipur for trial of the offence
under the said Act for Raipur District.
20.Thus, the trial Magistrate was not a Special Court notified
by the State Government within the meaning of Section 14
of the Act of 1989 read with Section 193 of the CrPC.
Therefore, learned Judicial / trial Magistrate had absolutely
no jurisdiction to entertain and take cognizance of the
offence under Section 3 (1) (x) of the Act of 1989. Even
otherwise, the Special Courts constituted under Section 14
of the Act of 1989 have been empowered to take cognizance
of the offence directly under this Act with effect from 1-1-
2016 and learned Magistrate took cognizance of the
offences under the Act of 1989 on 3-5-2014. Therefore, by
no stretch of imagination, the impugned order directly
taking cognizance of the offence under Section 3 (1) (x) of
the Act of 1989, can be held to be the valid exercise of
jurisdiction by learned trial Court, rather it is a case of
exercise of jurisdiction by learned Magistrate not vested in it
by law and it is held to be without jurisdiction and without
authority of law.
21.Accordingly, it is held that the order dated 3-5-2014 passed
by the trial Magistrate directly taking cognizance of the
offence under Section 3 (1) (x) of the Act of 1989 is without
jurisdiction and without authority of law and runs contrary
to Section 14 of the Act of 1989 read with Section 193 of
the CrPC and it is accordingly quashed. Resultantly, the
order dated 15-4-2015 passed by the Court of Session
affirming the order of learned Magistrate also stands
quashed. However, respondent No.1 is at liberty to proceed
in accordance with law, if so advised.
22.The writ petition is allowed to the extent indicated hereinabove,
but without imposition of cost(s).
Sd/-
(Sanjay K. Agrawal)
Judge
SomaW.P.(Cr.)No.112/2015
Page 16 of 16
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No.112 of 2015
Smt. Achla D Sapre
Versus
Smt. Asha Mahilkar (Rajput) and another
HEAD NOTE
The trial Magistrate / Judicial Magistrate has no jurisdiction to
directly take cognizance of the offence under the provisions of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, it is the Special Court under Section 14 of
the Act of 1989 who has jurisdiction under the Act of 1989.
Print Page
part of the judgment would clearly show that now, by the
Amendment Act, 2015 only, the Special Courts have been
empowered to take cognizance directly, of the offences
under the Act of 1989. It has been held so because the
Courts of Session are the Special Courts constituted under
Section 14 of the Act of 1989.
19.The erstwhile State of Madhya Pradesh in exercise of power
conferred under Section 14 of the Act of 1989 by
notification dated 26-10-1995 notified the Sessions Judge of
each of the districts to exercise power and jurisdiction under
the Act of 1989. Thereafter, the State of Chhattisgarh by its
notification dated 4-2-2015 in exercise of power conferred
under Section 14 of the Act of 1989 with the concurrence of
Hon'ble the Chief Justice of this Court has established the
Exclusive Special Court at Raipur for trial of the offence
under the said Act for Raipur District.
20.Thus, the trial Magistrate was not a Special Court notified
by the State Government within the meaning of Section 14
of the Act of 1989 read with Section 193 of the CrPC.
Therefore, learned Judicial / trial Magistrate had absolutely
no jurisdiction to entertain and take cognizance of the
offence under Section 3 (1) (x) of the Act of 1989. Even
otherwise, the Special Courts constituted under Section 14
of the Act of 1989 have been empowered to take cognizance
of the offence directly under this Act with effect from 1-1-
2016 and learned Magistrate took cognizance of the
offences under the Act of 1989 on 3-5-2014. Therefore, by
no stretch of imagination, the impugned order directly
taking cognizance of the offence under Section 3 (1) (x) of
the Act of 1989, can be held to be the valid exercise of
jurisdiction by learned trial Court, rather it is a case of
exercise of jurisdiction by learned Magistrate not vested in it
by law and it is held to be without jurisdiction and without
authority of law.
21.Accordingly, it is held that the order dated 3-5-2014 passed
by the trial Magistrate directly taking cognizance of the
offence under Section 3 (1) (x) of the Act of 1989 is without
jurisdiction and without authority of law and runs contrary
to Section 14 of the Act of 1989 read with Section 193 of
the CrPC and it is accordingly quashed.
HEAD NOTE
The trial Magistrate / Judicial Magistrate has no jurisdiction to
directly take cognizance of the offence under the provisions of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, it is the Special Court under Section 14 of
the Act of 1989 who has jurisdiction under the Act of 1989.
Writ Petition (Cr.) No.112 of 2015
Smt. Achla D Sapre,
V
Smt. Asha Mahilkar (Rajput),
Hon'ble Shri Justice Sanjay K. Agrawal
Dated:25/02/2016
Citation:2016 CRLJ3313 Chhatis
1. The splendid question of law that emanates for
consideration in this writ petition is whether the trial
Magistrate can directly take cognizance of the offence
punishable under the provisions of Section 3 (1) (x) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 or only it is the Special Court
constituted under Section 14 of the Act of 1989.
2. Invoking the writ jurisdiction of this Court under Article
226/227 of the Constitution of India, the petitioner herein
seeks to challenge legality, propriety and correctness of the
order dated 15-4-2015 passed in Criminal Revision
No.227/2014 by which learned Special Judge, Raipur has
affirmed the order passed by the trial Magistrate dated 3-5-
2014 in Criminal Complaint Case No.7859/2014, whereby
and whereunder learned Judicial Magistrate First Class,
Raipur has taken cognizance against the petitioner for
offence punishable under Section 3 (1) (x) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short 'the Act of 1989').
3. Respondent No.1 herein preferred a complaint under
Section 200 of the CrPC for offence under Section 3 (1) (x)
of the Act of 1989 against the petitioner herein stating inter
alia that the petitioner, on the date of incident, has
intentionally insulted / intimidated respondent No.1 with
intent to humiliate knowing fully well that respondent No.1
is a member of Scheduled Caste and thereby committed the
offence under the Act of 1989. Learned trial Magistrate by
its order dated 3-5-2014 after recording the evidence of
respondent No.1 / complainant and his witnesses, took
cognizance of offence under Section 3 (1) (x) of the Act of
1989 against the petitioner and directed for issuance of
summon to the petitioner. Feeling aggrieved against the
order passed by the trial Magistrate, the petitioner herein
preferred a criminal revision bearing Cr.Rev.No.227/2014
before the Court of Session.
4. The Court of Session by the impugned order dated 15-4-
2015 dismissed the revision petition holding that by the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Amendment Ordinance, 2014 (for short 'the
Ordinance of 2014'), which came into force with effect from
4-3-2014, the jurisdiction to take direct cognizance was
conferred to the Special Judge/Special Court, but the
jurisdiction of the trial Magistrate to directly entertain
complaint was not specifically barred, therefore, learned
trial Magistrate was fully justified in entertaining and taking
cognizance of offence under Section 3 (1) (x) of the Act of
1989.
5. Impugning legality, correctness and otherwise of the order
passed by learned trial Magistrate duly affirmed by the
Court of Session, the petitioner herein/accused has preferred
this writ petition under Article 226/227 of the Constitution
of India stating inter alia that under the Act of 1989, by
virtue of Section 14 of the Act of 1989, jurisdiction and
power to take cognizance has been specifically conferred to
the Special Court as defined in Section 2 (d) of the Act of
1989 which states that Special Court means a Court of
Session specified as a Special Court in Section 14 of the Act
of 1989, and learned trial Magistrate is not empowered to
take cognizance and therefore learned trial Magistrate has
no power and jurisdiction to take cognizance of offence
under Section 3 (1) (x) of the Act of 1989 and learned
Sessions Judge has also perpetuated the illegality by
overlooking the fact that no such power has even been
conferred by the Ordinance of 2014 to the trial Magistrate
and it has only been conferred to the Special Court by the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015, which came into force
with effect from 1-1-2016 and therefore, the impugned order
deserves to be set aside.
6. Return has been filed on behalf of respondent No.1
opposing the writ petition and stating inter alia that the order
passed by learned trial Magistrate taking cognizance of the
offence which was affirmed by the Court of Session is a
well merited order and no interference is called for in
exercise of jurisdiction under Article 227 of the Constitution
of India.
7. Mr. Kishore Bhaduri, learned counsel appearing for the
petitioner, while making scathing attack on the order of
learned Magistrate affirmed by the Court of Session, would
submit that the Special Court as envisaged under Section 14
of the Act of 1989 has been defined in Section 2 (d) which
means a Court of Session specified as a Special Court in
Section 14, by a notification in the Official Gazette issued
by the State Government with the concurrence of the Chief
Justice of the High Court for each district. He would further
submit that the State Government in exercise of power
conferred under Section 14 of the Act of 1989, specified for
each of the districts a Court of Session to be the Special
Court to try the offence under this Act. He would also
submit that the order dated 3-5-2014 has been passed by
learned trial Magistrate which is not the Court specified by
the State Government in exercise of power conferred under
Section 14 of the Act of 1989, as the State Government has
only notified the Court of Session to be a Special Court to
try the offence under the Act of 1989 and therefore the
impugned order passed by learned Sessions Judge affirming
the order passed by the Magistrate deserves to be set aside.
8. Mr. Ankit Singhal, learned counsel appearing for respondent
No.1 / complainant, would submit that learned Magistrate is
absolutely justified in entertaining the complaint and taking
cognizance of offence under Section 3 (1) (x) of the Act of
1989 and learned Sessions Judge is justified in dismissing
the revision finding no merit.
9. I have heard learned counsel for the parties and bestowed
my thoughtful considerations to the submissions made by
the other side herein-above and also gone through the record
with utmost circumspection.
10.The Act of 1989 has been constituted to prevent the
Commission of offences of atrocities against the members
of the Scheduled Castes and the Scheduled Tribes, to
provide for special courts for the trial of such offences and
for the relief and rehabilitation of the victims of such
offences. The term “Special Court” is defined in Section 2
(d) of the Act of 1989 and Section 14 speaks about the
constitution of Special Court which states as under: -
“14. Special Court.—For the purpose of
providing for speedy trial, the State
Government shall, with the concurrence of the
Chief Justice of the High Court, by notification
in the Official Gazette, specify for each district
a Court of Session to be a Special Court to try
the offences under this Act.”
11.The Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Amendment Ordinance, 2014 was
promulgated on 4-3-2014 to amend the Act of 1989, of
which Section 14 provides as under: -
“14. (1) For the purpose of providing for
speedy trial, the State Government shall, with
the concurrence of the Chief Justice of the
High Court, by notification in the Official
Gazette, establish an Exclusive Special Court
for one or more Districts:
Provided that in Districts where less
number of cases under this Ordinance is
recorded, the State Government shall, with the
concurrence of the Chief Justice of the High
Court, by notification in the Official Gazette,
specify for such Districts, the Court of Session
to be a Special Court to try the offences under
this Ordinance:
Provided further that the Courts so
established or specified shall have power to
directly take cognizance of offences under this
Ordinance.
(2) It shall be the duty of the State
Government to establish adequate number of
Courts to ensure that cases under this
Ordinance are disposed of within a period of
two months, as far as possible.
(3) In every trial in the Special Court or the
Exclusive Special Court, the proceedings shall
be continued from day-to-day until all the
witnesses in attendance have been examined,
unless the Special Court or the Exclusive
Special Court finds the adjournment of the
same beyond the following day to be
necessary for reasons to be recorded in
writing:
Provided that when the trial relates to an
offence under this Ordinance, the trial shall, as
far as possible, be completed within a period
of two months from the date of filing of the
charge sheet.”
12.The above-stated Section 14 of the Ordinance of 2014
would show that by the aforesaid Ordinance, jurisdiction has
been conferred to the Special Courts to directly take
cognizance of offences under the Act of 1989 as amended
by the Ordinance of 2014.
13.The life of the Ordinance was six months and thereafter, it
expired. The Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Amendment Act, 2015 came into
force with effect from 1-1-2016 of which Section 14 (1)
provides as under: -
“14. Special Court and Exclusive Special
Court.—(1) For the purpose of providing for
speedy trial, the State Government shall, with
the concurrence of the Chief Justice of the
High Court, by notification in the Official
Gazette, establish an Exclusive Special Court
for one or more Districts:
Provided that in Districts where less
number of cases under this Act is recorded, the
State Government shall, with the concurrence
of the Chief Justice of the High Court, by
notification in the Official Gazette, specify for
such Districts the Court of Session to be a
Special Court to try the offences under this
Act:
Provided further that the Courts so
established or specified shall have power to
directly take cognizance of offences under this
Act.”
14.By the aforesaid Amendment, again it has been reiterated
that the Special Courts shall have power to directly take
cognizance of offences under this Act. Keeping in view the
legislative changes brought in and incorporated in the Act of
1989, it is appropriate to take note of Section 193 of the
CrPC. Section 193 of the CrPC reads as follows: -
“193. Cognizance of offences by Courts of
Session.—Except as otherwise expressly
provided by this Code or by any other law for
the time being in force, no Court of Session
shall take cognizance of any offence as a Court
of original jurisdiction unless the case has
been committed to it by a Magistrate under
this Code.”
15.On a careful reading of the aforesaid provision, it is quite
vivid that the Court of Session can take cognizance of any
offence as a Court of original jurisdiction except as
otherwise expressly provided by the Code or by any other
law for the time being in force only if the case has been
committed to it by a Magistrate.
16.In a decision in Gangula Ashok and another v. State ofW.P.
A.P.1
, Their Lordships of the Supreme Court considered the
question whether “a Special Court” under the Act of 1989
can take cognizance of any offence without the case being
committed to that Court, and resolving the controversy,
Their Lordships held as under: -
“10. Section 193 of the Code has to be
understood in the aforesaid backdrop. The
section imposes an interdict on all Courts of
Session against taking cognizance of any
offence as a court of original jurisdiction. It
can take cognizance only if “the case has been
committed to it by a Magistrate”, as provided
in the Code. Two segments have been
indicated in Section 193 as exceptions to the
aforesaid interdict. One is, when the Code
itself has provided differently in express
language regarding taking of cognizance, and
the second is when any other law has provided
differently in express language regarding
taking cognizance of offences under such law.
The word “expressly” which is employed in
Section 193 denoting those exceptions is
indicative of the legislative mandate that a
Court of Session can depart from the interdict
contained in the section only if it is provided
differently in clear and unambiguous terms. In
1 (2000) 2 SCC 504W.P.(Cr.)No.112/2015
Page 12 of 16
other words, unless it is positively and
specifically provided differently no Court of
Session can take cognizance of any offence
directly, without the case being committed to it
by a Magistrate.
11. Neither in the Code nor in the Act is there
any provision whatsoever, not even by
implication, that the specified Court of Session
(Special Court) can take cognizance of the
offence under the Act as a court of original
jurisdiction without the case being committed
to it by a Magistrate. If that be so, there is no
reason to think that the charge-sheet or a
complaint can straight away be filed before
such Special Court for offences under the Act.
It can be discerned from the hierarchical
settings of criminal courts that the Court of
Session is given a superior and special status.
Hence we think that the legislature would have
thoughtfully relieved the Court of Session
from the work of performing all the
preliminary formalities which Magistrates
have to do until the case is committed to the
Court of Session.
16. Hence we have no doubt that a Special
Court under this Act is essentially a Court of
Session and it can take cognizance of the
offence when the case is committed to it by theW.P.(Cr.)No.112/2015
Page 13 of 16
Magistrate in accordance with the provisions
of the Code. In other words, a complaint or a
charge-sheet cannot straight away be laid
down before the Special Court under the Act.”
17.Same proposition has been reiterated by the Supreme Court
in State of M.P. v. Bhooraji2
and Rattiram and others v.
State of Madhya Pradesh Through Inspector of Police3
that Special Court can take cognizance of the offence under
the Act of 1989 when it is committed to that Court.
18.The legislative change which has been noticed in the earlier
part of the judgment would clearly show that now, by the
Amendment Act, 2015 only, the Special Courts have been
empowered to take cognizance directly, of the offences
under the Act of 1989. It has been held so because the
Courts of Session are the Special Courts constituted under
Section 14 of the Act of 1989.
19.The erstwhile State of Madhya Pradesh in exercise of power
conferred under Section 14 of the Act of 1989 by
notification dated 26-10-1995 notified the Sessions Judge of
each of the districts to exercise power and jurisdiction under
the Act of 1989. Thereafter, the State of Chhattisgarh by its
2 (2001) 7 SCC 679
3 (2012) 4 SCC 516
notification dated 4-2-2015 in exercise of power conferred
under Section 14 of the Act of 1989 with the concurrence of
Hon'ble the Chief Justice of this Court has established the
Exclusive Special Court at Raipur for trial of the offence
under the said Act for Raipur District.
20.Thus, the trial Magistrate was not a Special Court notified
by the State Government within the meaning of Section 14
of the Act of 1989 read with Section 193 of the CrPC.
Therefore, learned Judicial / trial Magistrate had absolutely
no jurisdiction to entertain and take cognizance of the
offence under Section 3 (1) (x) of the Act of 1989. Even
otherwise, the Special Courts constituted under Section 14
of the Act of 1989 have been empowered to take cognizance
of the offence directly under this Act with effect from 1-1-
2016 and learned Magistrate took cognizance of the
offences under the Act of 1989 on 3-5-2014. Therefore, by
no stretch of imagination, the impugned order directly
taking cognizance of the offence under Section 3 (1) (x) of
the Act of 1989, can be held to be the valid exercise of
jurisdiction by learned trial Court, rather it is a case of
exercise of jurisdiction by learned Magistrate not vested in it
by law and it is held to be without jurisdiction and without
authority of law.
21.Accordingly, it is held that the order dated 3-5-2014 passed
by the trial Magistrate directly taking cognizance of the
offence under Section 3 (1) (x) of the Act of 1989 is without
jurisdiction and without authority of law and runs contrary
to Section 14 of the Act of 1989 read with Section 193 of
the CrPC and it is accordingly quashed. Resultantly, the
order dated 15-4-2015 passed by the Court of Session
affirming the order of learned Magistrate also stands
quashed. However, respondent No.1 is at liberty to proceed
in accordance with law, if so advised.
22.The writ petition is allowed to the extent indicated hereinabove,
but without imposition of cost(s).
Sd/-
(Sanjay K. Agrawal)
Judge
SomaW.P.(Cr.)No.112/2015
Page 16 of 16
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No.112 of 2015
Smt. Achla D Sapre
Versus
Smt. Asha Mahilkar (Rajput) and another
HEAD NOTE
The trial Magistrate / Judicial Magistrate has no jurisdiction to
directly take cognizance of the offence under the provisions of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, it is the Special Court under Section 14 of
the Act of 1989 who has jurisdiction under the Act of 1989.
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