JUDGMENT
R. Basant, J.
1. What is the effect of a trial held by a Court of Sessions consequent to cognizance taken in breach of the stipulations of Section 193 of the Code of Criminal Procedure? Does such breach ipso facto vitiate the trial? Is there any conflict between the two decisions of the Supreme Court reported in Vidyadharan v. State of Kerala (2004 (1) KLT 103) 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 Section 323 of the Indian Penal Code and Section 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 Section 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) KLT 231). The accused denied the offence alleged against him. Thereupon, PWs.1 to 10 were examined and Exts.P1 to P11 were marked. The accused took up a defence of total denial. He contended that PWs.5 to 7 were not speaking the truth. They were close friends and interested. PW.5 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 PWs.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 Section 323 of the I.P.C., it was held. It was further held that the evidence of PWs.5 to 7 is sufficient to establish the offence punishable under Section 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 Section 193 of the Cr.P.C. 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 Section 193 of the Cr.P.C. 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 Section 193 of the Cr.P.C. 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 Section 193 of the Cr.P.C. was fully justified by the Full Bench decision of the Kerala High Court in Hareendran’s case – 1995 (1) KLT 231 (cited supra), the later decisions of the Supreme Court have made it absolutely clear that such direct cognizance, without complying with Section 193, cannot be taken as the notified Special Court under Section 14 is only a Court of Session. The decisions reported in Gangula Ashok v. State of A.P. (2000 (1) KLT 609), State of M.P. v. Bhooraji (2001 (3) KLT (SC) (SN) 47 P. 34 = (2001) 7 SCC 679), Vidyadharan v. State of Kerala (2004 (1) KLT 105) and Kuttappan v. E.K. Nayanar (2004 (2) KLT 145) have now laid down the position of law beyond any trace of doubt. A notified Special Court under Section 14 of the SC/ST P.A. Act which is essentially a Court of Sessions does not have the jurisdictional competence to take cognizance of any offence without complying with the provisions of Section 193 of the Cr.P.C. Cognizance taken is, thus, bad in law, undoubtedly.
8. There is no controversy on this aspect. The only question is whether the trial which has already been completed can be saved and whether the unnecessary trauma of a de novo trial can be avoided.
9. On this aspect, the learned counsel for the appellant contends that the Court has no go, but to hold that the trial is vitiated. He relied on the decision reported in Vidyadharan’s case (cited supra). That was a case where an identical situation arose. A two Judge Bench of the Supreme Court in that case had set aside the conviction under Section 3(1)(xi) of the SC/ST P.A. Act on the ground that there was no proper committal. The learned Prosecutor, on the contrary, points out the decision in State of M.P. v. Bhooraji (2001) 7 SCC 679) where the identical question was considered by another two Judge Bench of the Supreme Court. They had come to the conclusion that notwithstanding the infraction of the provisions of Section 193 of the Cr.P.C, the completed trial need not be set aside and a de novo trial cannot and need not be directed. The Supreme Court in Bhooraji’s case (cited supra) had affirmed the dictum in Gangula Ashok’s case (cited supra); but had taken the view that the completed trial can be saved with the help of Section 465(l) of the Cr.P.C. Their Lordships, held that such a trial cannot be held to be void. Section 465 of the Cr.P.C. would save such trial as it cannot be held that there has been “failure of justice” on account of non- compliance with Section 193. Such Court which had taken cognizance without observing the provisions of Section 193 of the Cr.P.C. can be held to be a “Court of competent jurisdiction”, it was clearly held.
10. The later decisions of the Supreme Court in Vidyadharan and Kuttappan (cited supra) did not at all consider the question whether Section 465 of the Cr.P.C. would save the situation in the facts of that case. In Vidyadharan, that question was not raised or considered. In Kuttappan the question did not arise for consideration as the trial had not commenced.
11. The mere fact that the learned Judges in Vidyadharan chose to acquit the accused of the offence under Section 3(1)(xi) of the SC/ST P.A. Act cannot lead the Court to the conclusion that the decision in Bhooraji was not approved by them. In Vidyadharan, the questions which arose in Bhooraji were not raised or considered. The play of Section 465 Cr.P.C. was not considered in Vidyadharan. In these circumstances, it must be held that Bhooraji holds the field in so far as the play of Section 465 of the Cr.P.C. is concerned. All the four decisions referred above are by two Judge Benches of the Supreme Court. It is perfectly possible to harmonize the dicta in all the four decisions and I am unable to find any conflict between those decisions. They declare in one voice that cognizance can be taken by the Special Court only on committal of a case to it under Section 193 of the Cr.P.C. But, as to what is the effect or consequence of a completed trial which commenced on the basis of improper cognizance, it is certainly Bhooraji which holds the field. Vidyadharan and Kuttappan have not considered the play of Section 465 specifically and the mere fact that the learned Judges chose to take the view that the trial cannot be held for an offence under the SC/ST P. A. Act without committal cannot lead this Court to the conclusion that all such trials are vitiated ipso facto for that reason. Failure of justice has to be established before such trial is held to be void and nonest.
12. It is of interest to note that in Vidyadharan the Supreme Court did not hold the trial to be vitiated. Though the conviction under Section 3(1)(xi) of the SC/ST P.A. Act was set aside, significantly, conviction under Sections 354 and 447 of the I.P.C. was upheld. If the trial were vitiated and void, certainly, such a decision would not have been possible.
13. In these circumstances, the dictum in Vidyadharan cannot help the appellant to contend that the trial held is vitiated and void. I am, in these circumstances, satisfied that the impugned judgment need not be set aside and no de novo trial need not be directed on the ground of non-conformity with the mandate of Section 193 of the Cr.P.C. No prejudice has resulted. There was no failure of justice. The Sessions Court must be held to be a Court of competent jurisdiction, even if Section 193 of the Cr.P.C. was not complied with.
14. The learned Sessions Judge has entered conviction under Section 323 I.P.C. and Section 3(1)(x) of the SC/ST P.A. Act. During the pendency of this appeal, the matter has been settled between the parties and proper application for composition along with the application for grant of leave has been filed before this Court. The offence punishable under Section 3(1)(x) of the SC/ST P.A. Act is not compoundable. But the offence under Section 323 of the I.P.C. is certainly compoundable under Section 320(1) of the Cr.P.C. Before accepting such composition, leave under Section 320(5) of the Cr.P.C. should also be secured.
15. The respondents have appeared before this Court through their counsel. It is through the counsel that they have filed Crl.M. A. No. 7173/04 for leave under Section 320(5) of the Cr.P.C. and Crl.M.A.No.7174/04 for composition under Section 320(1)of the Cr.P.C. I am satisfied that the victims PWs.5 and 6, have voluntarily and genuinely settled their disputes and have compounded the offences. The learned counsel for PWs.5 and 6 vouch for their signatures in the petitions. He submits on “their behalf that the dispute has been settled.
16. The purpose of all laws is the attainment of harmony. When the offences are compoundable and the parties have willingly, voluntarily and genuinely settled their disputes and the victims have compounded the offences, I find no reason not to accept the composition, after granting the requisite leave.
17. The only question is whether such leave deserves to be granted when some of the offences alleged are compoundable and some of the offences alleged are not compoundable. I have gone through the provisions of Section 320 of the Cr.P.C. From principle or precedent, I am unable to find any reason not to accept the composition of the compoundable offences merely because there is an allegation that non-compoundable offences have also been committed in the course of the same transaction. No general proposition of law can certainly be laid down. Facts of each case will have to be considered. Where the allegations of commission of compoundable and non-compoundable offences are raised in respect of the same incident and the composition is sought before the commencement of the trial, different considerations may theoretically apply. The Courts may certainly have to consider whether it would be expedient and in the interests of justice to accept the composition. Ordinarily and in the absence of special reasons, certainly the composition of the compoundable offences can be accepted. In the facts and circumstances of this case, I am certainly satisfied that the composition of the offence punishable under Section 323 of the I.P.C. can be accepted after granting the requisite leave under Section 320(5) of the Cr.P.C.
18. That leads us to the offence punishable under Section 3(1)(x) of the SC/ST P.A. Act. I am certainly of opinion that the evidence of PWs.5, 6 and 7 does not deserve to be thrown over board merely for the reason that all three of them do belong to the Scheduled Caste. We have further evidence to show that PWs.5, 6 and 7 are close friends. PWs.5 and 7 are admittedly maternal first cousins. They are certainly interested. The offence under Section 323 of the I.P.C. has been compounded. But I am certainly satisfied that the allegations of assault which are supported broadly by the wound certificates can also be safely accepted. To that extent, the evidence of PWs.5 to 7 can certainly be accepted. It is also of relevance to note that even though many others who can be termed to be independent had admittedly witnessed the occurrence, no such witness has been made available to the Court to ascertain the truth of the prosecution version. In spite of that the conclusion that PWs.5 to 7 can be believed when they speak of assault and commission of the offence under Section 323 of the I.P.C. can safely be approved.
19. But different indeed is the situation when the alleged intentional insult/ intimidation/humiliation alleged under Section 3(1)(x) of the SC/STP. A. Act are concerned. It is human nature to exaggerate the allegations against one’s adversary. It is, therefore, very important to ensure that the Court is careful and cautious to exclude the possibility of exaggeration by a victim/those interested in him.
20. The provisions of the SC/ST P. A. Act do certainly have a cherished legislative dream prompting them. In the quest to march towards a casteless society where there is no discrimination on the basis of caste, the provisions have been enacted. Penal law has stepped in to regulate human behaviour in a refined and sophisticated society. Insult/humiliation against member of a less fortunate caste by members who do not belong to such caste is sought to be prevented by Section 3(1)(x) of the SC/ST P.A. Act by the threat of sanction under the penal law. No Court can be oblivious to the possibility of misuse of such provisions. If alert consideration were not given, the Statute can be an instrument of oppression in the hands of the unprincipled. Therefore, the Courts always have the burden to make sure that the allegations like the ones raised in this, case, on the basis of which the accused faces indictment, are subjected to careful and cautious scrutiny.
21. When so considered, I am certainly of opinion that the evidence of PWs.5, 6 and 7 deserve a careful and cautious approach. There is no unanimity in the precise words used. Nay there is positive contradiction. There is difference between the version in Ext.P7 – First Information Statement and the evidence tendered before Court. In these circumstances, I would certainly choose to concede to the accused the benefit of doubt on that precise aspect – as to the words used at the time of the proved physical assault. It is also important to note that under Section 3(1)(x) of the SC/ST P.A. Act what has to be established is intentional insult/humiliation. How the victim/perceiver understood and appreciated the alleged acts is also of crucial importance. The evidence of PWs.5, 6 and 7 can only indicate that they are aggrieved by the physical assault primarily. There is no specific evidence to show that as individual human beings or as members of the SC/ST community to which they belong, they felt insulted or humiliated. This is one more reason which persuades me to concede the benefit of doubt to the accused on this crucial and vital aspect. In the totality of the facts and circumstances of this case, I am certainly of opinion that it would be safer, more prudent and just to concede to the accused the benefit of doubt. I unhesitatingly concede such benefit to them.
23. In the result:
(a) This appeal is allowed.
(b) The impugned judgment is, in these circumstances, set aside.
(c) The accused is found entitled to the benefit of doubt in relation to the offence punishable under Section 3(1)(x) of the SC/ST P.A. Act and he is consequently found not guilty and acquitted of the said charge.
(d) Crl. M. A. Nos. 7173 and 7174/04 are allowed and the composition of the offence payable under Section 323 of the I.P.C. is accepted, after granting the requisite leave.
(e) The acceptance of the composition shall have the effect of acquittal of the accused as stipulated under Section 320(8) of the Cr.P.C. in so far as charge under Section 323 of the I.P.C. is concerned.
(f) The bail bond executed by the accused shall stand discharged. He is set at liberty.
