JUDGMENT
S.B. Sinha, J.
1. In this application the petitioner has sought for issuance of a writ of or in the nature of mandamus directing (sic) quashing of a prosecution under Section 3(1)(xi) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter to be referred to as the said Act.) In complaint case No. 795 (C) of 1991/20-C of 1991 pending in the Court of 1st Additional District and Sessions Judge, Bettiah, West Champaran which is the designated special court for the purpose of aforementioned Act.
2. In view of the point involved in this application it is not necessary to notice the fact of the matter in great details.
3. The respondent No. 3 filed an application before the Chief Judicial Magistrate West Champaran alleging inter alia therein that the petitioner had on 27-8-1991 at about 9 p.m. trespassed into her house and committed rape on her. The Chief Judicial Magistrate appears to have upon perusal of the complaint petition come to the opinion that the allegations made therein disclosed commission of offences under the said Act. He therefore sent the complaint petition to the Court of Special Judge constituted under Section 14 of the said Act,
4. On receipt of the said complaint petition, the respondent No. 3 was directed to appear on 29-8-1991 and on that date of complainant was examined on solemn affirmation whereafter Mukhia of Mangalpur Gudaria Gram Panchayat was directed to enquire into the allegation made therein or submit his report on or before 12-9-1991. As the report was not submitted by Mukhia, till 28-9-1991, the respondent No. 3 filed an application for recalling the order of enquiry from Mukhia and entrust the same to any other persons.
5. However, on 1-10-1991, the report of the Mukhia was received.
6. The respondent No. 2 thereafter by an order dated 10-10-1991 took cognizance as against the petitioner under the aforementioned provisions of the said Act.
7. Mr. P. N. Pandey, learned Counsel appearing on behalf of the petitioner raised a short question in support of this application.
The learned Counsel submitted that in view of Section 193 of the Code of Criminal Procedure, the special court being a Court of Sessions is precluded from taking cognizance of an offence as an original court and thus the order taking cognizance of the petitioner must be held to be vitiated in law.
8. The only question which arises for consideration is as to whether under Section 14 of the said Act the respondent No. 2 was empowered to take cognizance of an offence against the petitioner in terms of the provisions of the said Act.
The said Act was enacted to prevent commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes, to provide for special courts for the trial of such offences and for the relief and rehabilitation of victims of such offences and for matters connected therewith or incidential thereto.
Section 2(a) of the said Act defines atrocity to mean an offence punishable under Section 3.
Section 2(d) defines ‘special court’ means a Court of Sessions specified as a special court in Section 14.
Section 2(f) of the said Act provides that words and expression used but not defined in the said Act and defined in the Code or the Indian Penal Code shall have the meanings assigned to them respectively in the Code, or as the case may be, in the Indian Penal Code.
Section 3 enlists the offences committed by any person not being a member of scheduled castes or scheduled tribes. The punishment provided for an offence mentioned in Sub-section (1) of Section 3 would not be less than six months but may extend to five years and with fine.
Different clauses mentioned in Sub-section (2) of Section 3 prescribes different punishments, including punishment for life imprisonment and death.
Section 6 provides for application of certain provisions of the Indian Penal Code i.e. the provisions of Section 34, Chapter III, Chapter IV, Chapter V Chapter V-A ; Section 49 and Chapter XXIII of the Indian Penal Code so far as they apply for the purposes of the said Act.
Section 8 raises a presumption of commission of offences if conditions laid down therein are fulfilled.
Section 14 provides constitution of Special Courts which reads as follows:
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 Sessions to be a Special Court to try the offences under this Act.
9. It is admitted at the bar that the State of Bihar in consultation with the High Court has issued a notification specifying the 1st Additional Sessions Judge of each district to be the special Courts for the purpose of the aforementioned Section.
Sections 18 and 19 (ii) includes the provision of Section 438 and Section 360 of the Code of Criminal Procedure respectively.
Section 20 provides for a non-obstante clause.
Section 21 of the said Act imposes a duty on Government to ensure effective implementation of the Act.
Section 23 empowers the Central Government to frame rules for carrying out the purposes of the Act.
10. It is not disputed that the aim and object of the said Act is to prevent atrocity against the members belonging the Scheduled Castes and Scheduled Tribes and for speedy trial of the offences under the said Act.
11. The said Act does not provide for any procedure to be adopted by the Special Court for trial of offences under the said Act.
Section 14 merely provides for constitution of Special Courts for the purpose of providing for speedy trial and specifying a court of session in each district court to be declared as special courts to try the offences under the said Act. In this view of the matter, the general procedures laid down under the Code of Criminal Procedure have to be followed.
Section 4(2) and 5 of the Code of Criminal Procedure read as follows:
Section 4(2)-All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Section 5-Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction of power conferred or any special form of procedure prescribed, by any other law for the time being in force.
12. In absence of any provisions laying down the procedure under the said Act, there cannot be any doubt that in terms of Sub-section (2) of Section 4 of the said Act the procedure laid down in Code of Criminal Procedure have to be followed and further in view of Section 5 thereof, the jurisdiction to try a case involving offence under the said Act being a case of special jurisdiction would vest in the special courts.
13. There, however, appears to be serious lacuna in the Act.
Section 193 of the Code of Criminal Procedure prohibits a Court of Sessions to take cognizance of offences unless the case has been committed to it by a Magistrate under the said Code. No provision exists whereby power to take cognizance of the offence has specifically been conferred in the special courts by reason of the provision of the said Act,
14. It cannot be said in view of the express bar contained in Section 193 of the Code of Criminal Procedure, that power to try a case includes power to take cognizance inasmuch as Section 2(g) of the Code of Criminal Procedure defines ‘enquiry’ to mean an enquiry other than a trial conducted under the Code by a Magistrate or a court. An enquiry in terms of the provisions of the Code of Criminal Procedure having excluded a trial, the same has to be conducted by a Magistrate only, as the special court if not empowered to make an enquiry in this regard.
Section 6 of the Code of Criminal Procedure inter alia prescribes the court of sessions as one of the classes of Criminal Courts. In this case however, special courts have been constituted under the said Act.
Section 26 of the Code of Criminal Procedure reads as follows:
Subject to the other provisions of this Code-
(a) any offence under the Indian Penal Code may be tried by-
(i) the High Court of,
(ii) the court of sessions, or
(iii) any other court by which such offence is shown in the First Schedule to be triable ;
(b) any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court and when no court is so mentioned, may be tried by,-
(i) the High Court, or
(ii) any other court by which such offence is shown in the First Schedule to be triable.
15. In terms of the provisions of the said Act further it has not been provided that all the offences shall be cognizable in terms of provisions of Section 3 of the said Act. The punishment may vary from six months to death. Therefore, certain offences under Section 3(1) and all the offences under Section 3(2) would be cognizable and, therefore, first information report may be lodged whereas for commission of some other offences in respect whereof the punishment is less than three years, no FIR can be lodged, and only complaint petition can be filed.
In that view of the matter, the entire procedure for enquiry and investigation laid down in the Code of Criminal Procedure will have to be followed.
16. However, in terms of Section 193 of the Code of Criminal Procedure, the power to take cognizance under Section 190 of the Code of Criminal Procedure is to be exercised only by the Magistrate of first class and, thus, even if cognizance is taken by any Chief Judicial Magistrate or where there is no Chief Judicial Magistrate by Magistrate of Ist class, as case can be made over for enquiry or trial only to any competent Magistrate subordinate to him.
17. The Chief Judicial Magistrate or any other Magistrate cannot therefore transfer a case to the court of sessions which is a superior court to that of the Chief judicial Magistrates or any other Magistrate in view of Section 192 of the Code of Criminal Procedure.
18. It is, therefore, clear that as no power has been conferred upon the special court to take cognizance of an offence in terms of an express provision under the said Act the impugned order cannot be sustained.
19. In view of my findings aforementioned, the learned Chief Judicial Magistrate Battiah, is hereby directed to examine the complainant afresh on solemn affirmation and proceed to hold an enquiry in accordance with law upon following the procedure laid down under the Code of Criminal Procedure.
20. In the result, this application is allowed, the impugned order is set aside and the respondent No. 2 is hereby directed to remit the records of the case back to the Court of Chief Judicial Magistrate, Bettiah who shall thereafter proceed therewith in terms of this judgment.
N.P. Singh, J.
21. I agree.