ORDER
1. The petitioner is charged in C.C. No. 11/93 under S. 7(1)(d) of the Protection of Civil Rights Act, 1955 (hereinafter called ‘the Act’) and Ss, 504 and 506, IPC. When the case was taken up for trial by the VII Metropolitan Magistrate-cum-Special Mobile Magistrate, the petitioner filed a petition stating that the said Court had no jurisdiction to try his case, as the offence took place in a scheduled area and as per Schedule V of the Constitution of India, the scheduled area falls within the exclusive jurisdiction of Executive Magistrate and that the Criminal Procedure Code, 1973 was not applicable and the Judicial Magistrate has no jurisdiction to try the offence. On the said objection the Special Mobile Magistrate sent the record to the Metropolitan Sessions Judge, Visakhapatnam, who has taken it on file as Crl.R.C. No. 36/94. The learned Sessions Judge held that the Court of VII Metropolitan Magistrate-cum-Special Mobile Magistrate has been constituted to deal with cases under the Act. The said Court was designated under the provisions of the Act for the trial of cases in Agency areas and under the provisions of the Act only the said Court has got jurisdiction to try the offences under the Act for the offences committed in the Agency area of Visakhapatnam District. In that view the objection, was overruled and the Special Mobile Magistrate was directed to proceed with the case. Questioning the said order, this Crl R.C. has been filed.
2. The counsel for the petitioner contended that the Sub-Divisional Magistrate, Paderu, ought not to have sent the case record to the Special Mobile Magistrate directly and only the Principal Sessions Judge has got the jurisdiction to allot the cases to the Special Court. This objection is highly technical. The Sub Divisional Magistrate thinking that the VII Metropolitan Magistrate-cum-Special Mobile Magistrate has been constituted specially for the purpose of trying cases arising under the Act in Visakhapatnam District, has sent the file to him. lt hardly matters whether the case was allotted by the Principal Sessions Judge, who is alleged to have jurisdiction to allot the case to the Special Mobile Magistrate or has been directly sent by the Sub-Divisional Magistrate to the Special Mobile Magistrate. The petitioner has no complaint of prejudice in this regard. Hence this objection has no substance.
3. The second contention of the petitioner’s counsel is that the VII Metropolitan-cum-Special Mobile Magistrate has no jurisdiction to try the case since it has taken place in a Scheduled Area (Agency area) and according to the Fifth Schedule of the Constitution of India the offences committed in a Scheduled area fall within the jurisdiction of Executive Magistrate. The learned counsel further contended that the Code of Criminal Procedure, 1973, (thereinafter called ‘Code of 1973’) was not applicable to the offences committed in Scheduled areas. Under Art. 244 of the Constitution of India read with para 5 of the Fifth Schedule the Governor has issued a notification in G.O. Ms. No. 485 Home (Courts-B) Dept., dt. 20-3-1974 directing that the Code of Criminal Procedure 1973, shall not apply with effect from 1st April, 1974 to the Scheduled areas. Hence, the Code of Criminal Procedure 1898 (hereinafter called ‘Code of 1898’) was only applicable and that S. 15 of the Act making the Code of Criminal Procedure 1973 applicable to the Scheduled Areas is illegal.
4. Art. 244 of the Constitution of India clearly provides that the Fifth Schedule shall apply to the administration and control of Scheduled areas in any State. Under para 5 of the Fifth Schedule the Governor is empowered, by public notification to issue directions that any particular Act of Parliament or of the Legislature of the State shall apply or shall not apply to a Scheduled area. In exercise of the said power the Governor of Andhra Pradesh issued notification under G.O. Ms. No. 485 Home (Courts-B) Dept., dt. 20-3-1974, directing that the Code of Criminal Procedure, 1973 shall apply to the scheduled areas in the State of Andhra Pradesh subject to the modification that in sub-section (2) of S. 1 of the said Code after the existing proviso, the following proviso shall be inserted, namely :-
“Provided further that the provisions of this Code shall not apply on and from the 1 st day of April, 1974 to the Scheduled areas in the State of Andhra Pradesh but the State Government may, by notification, apply such provisions or any of them to the whole or part of such Scheduled areas with effect from such date or dates and with such supplemental, incidental or consequential modifications as may be specified in the notification.
This direction shall come into force on the 1 st day of April, 1974.”
5. By virtue of the above direction of the Governor the Cr.P.C. 1973, was not made applicable to the Scheduled areas with effect from 1-4-1974. It is stated by the learned Public Prosecutor that the State Government has not so far issued any notification modifying the above notification and applying the provisions of the Cr.P.C. 1973 to the Scheduled areas and that the matter is under consideration by the Government. A Division Bench of this Court in K. Bojji Reddy v. State of AP, 1995 (1) Andh LT (Cri) 43 also held that the Cr.P.C. 1973 is not applicable to the scheduled areas and that the Cr.P.C. 1898 is still applicable to such areas. It is true that S. 15 of the Act has empowered the Judicial Magistrate of First Class to try summarily offences punishable with imprisonment for a minimum term exceeding 3 months in accordance with the Cr.P.C. 1973. But the said provision cannot be made applicable for offences committed in Scheduled areas even under the Act, since the Cr.P.C. 1898 is the only Code applicable to all the offences committed in the Scheduled areas in view of Art. 244 of the Constitution of India.
6. Section 2 of the Code of 1898 provides that it extends to the whole of India except to the States of Jammu and Kashmir and Manipur. The operation of any special or local law which was in force prior to the enactment of the said Code, or any special form of procedure prescribed by any other law for the time being in force, was not effected by the said Code. The Ganjam and Vizagpatam Act, 1839 (Act No. 24 of 1839) was in force on the date of enactment of the Code of 1898. Ss. 2 and 3 of the said Act provide that the administration of civil and criminal justice in the present scheduled areas in Vizagpatam and Ganjam districts shall be vested in the Collector of the District, and shall be exercised by him as Agent for the State Government concerned. The said Act being a special Act having its own course of procedure, the procedure provided by the said Act is saved under S. 2 of the Code of 1898. Hence, the Judicial Magistrate has no jurisdiction to try the offences committed in the Scheduled areas. S. 15 of the Protection of Civil Rights Act cannot override the provisions of Art. 244 of the Constitution of India. The contention of the learned counsel for the petitioner has, therefore, to be accepted.
7. The next contention of the learned counsel for the petitioner is that the Court of Special Mobile Magistrate is not constituted under the Code of 1898. Hence it has no jurisdiction to try the offences committed in the Scheduled Areas. It is true that the Court of Special Mobile Magistrate has been constituted by the Government of Andhra Pradesh in exercise of the powers conferred by the proviso to sub-section (1) of S. 11 read with Clause (J) of S. 2 of Code of 1973 for trying exclusively the offences under the Indian Penal Code and the protection of Civil Rights Act, 1955, where the members of Scheduled Castes and Scheduled Tribes are the victims in the districts of Prakasam, Visakhapatnam etc. In the present case the offence has been committed in the agency area. Hence the Code of 1973 is not applicable to try the offences committed in those areas. The Mobile Court constituted under the Code of 1973 has therefore no jurisdiction to try the offences alleged against the petitioner. In this view also the Mobile Court is incompetent to try the offence.
Hence the contention of the petitioner is upheld.
8. For the aforesaid reasons I hold that the VII Metropolitan Magistrate-cum-Special Mobile Magistrate, Visakhapatnam, has no jurisdiction to try the offences punishable under S. 7(1)(d) of the Act and Ss. 504 and 5O6, IPC in CC No. 11/93 on its file. The Cri.RC is therefore, allowed.
9. Petition allowed.
