{"id":31315,"date":"2000-01-28T00:00:00","date_gmt":"2000-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gangula-ashok-and-anr-vs-state-of-andhra-pradesh-on-28-january-2000"},"modified":"2015-07-10T04:14:26","modified_gmt":"2015-07-09T22:44:26","slug":"gangula-ashok-and-anr-vs-state-of-andhra-pradesh-on-28-january-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gangula-ashok-and-anr-vs-state-of-andhra-pradesh-on-28-january-2000","title":{"rendered":"Gangula Ashok And Anr vs State Of Andhra Pradesh on 28 January, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gangula Ashok And Anr vs State Of Andhra Pradesh on 28 January, 2000<\/div>\n
Bench: K.T. Thomas, M.B.Shah<\/div>\n
           CASE NO.:\nAppeal (crl.)  94 of 2000\n\nPETITIONER:\nGANGULA ASHOK AND ANR.\n\nRESPONDENT:\nSTATE OF ANDHRA PRADESH\n\nDATE OF JUDGMENT: 28\/01\/2000\n\nBENCH:\nK.T. THOMAS & M.B.SHAH\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2000 (1) SCR 468<\/p>\n
The Judgment of the Court was delivered by THOMAS, J. Leave granted.\n<\/p>\n
Can a “special court” which is envisaged in Scheduled Castes and Scheduled
\nTribes (Prevention of Atrocities) Act, 1989, (for short ‘the Act’) take
\ncognizance of any offence without the case being committed to that court?
\nIf it cannot, then appellants cannot raise any grievance at this stage
\nregarding framing of a charge against them as they would get an opportunity
\nfor it later. First appellant is a practicing advocate and second appellant
\nis his wife who was working as Matron of a Girls’ Hostel run by the Social
\nWelfare Department. One Kumari G. Swetha was a resident of the said hostel
\nOn 27.2.1996 the said Swetha lodged a complaint with the police alleging
\nthat on 61.1996 the first appellant outraged\/tried to outrage her modesty.
\nThe police after investigation, filed a charge-sheet directly before the
\nSessions Court, Karim Nagar (Andhra Pradesh) which was designated as the
\nspecial court for trial of offences under the Act committed within the
\nterritorial limits of the district concerned. In the charge-sheet, first
\nappellant is alleged to have committed the offence under Section 3(1) (XI)
\nof the Act and also Section 354 of the Indian Penal Code. Besides first
\nappellant, the investigating officer arrayed his wife as the second
\nappellant for the offence under Section 201 of the Indian Penal Code in
\nrelation to the offences put against her husband, on the allegation that
\nwhen Kumari Swetha complained to the second appellant of the misdemeanor
\ncommitted by the first accused, she tried to persuade the complainant not
\nto divulge ft to anybody else. Subsequently the police dropped Section 354
\nof the IPC from the charge-sheet and filed a revised charge-sheet pursuant
\nto a query put by the Special Judge concerned.\n<\/p>\n
A charge was framed by the Special Judge against both the appel-lants for
\nthe aforesaid offences respectively. It was presumably at the said stage
\nthat the appellants moved the High Court for quashing the charge as well as
\nthe charge-sheet on various reasons. A Single Judge of the High Court of
\nAndhra Pradesh found that the procedure adopted by the inves-tigating
\nofficer in filing the charge-sheet straight-away to the Special Court was
\nnot in accordance with law, and the Special Judge had no jurisdiction to
\ntake cognizance of any offence under the Act without the case having been
\ncommitted to that court. Accordingly the learned Single Judge set aside the
\nproceedings of the Special Court and directed the charge-sheet and the
\nconnected papers to be returned to the police officer concerned who, in
\nturn, was directed to present the same before a Judicial Magistrate of 1st
\nClass “for the purpose of committal to the Special Court”. Learned Single
\nJudge further directed that “on such committal the special Court shall
\nframe appropriate charges in the light of the observations in the order.”\n<\/p>\n
Appellants have filed this appeal by special leave in challenge of the
\naforesaid order of the learned Single Judge of the Andhra Pradesh High
\nCourt.\n<\/p>\n
We have to consider whether the Special Judge could take cog-nizance of the
\noffence straightway without the case being committed to him. If the Special
\nCourt is a Court of Session the interdict contained in Section 193 of the
\nCode of criminal Procedure (for short ‘the Code’) would stand in the way.
\nIt reads thus :\n<\/p>\n
“193. Cognizance of offences by Courts of Session. – Except as otherwise
\nexpressly provided by this Code or by any other law for the time being in
\nforce, no Court of Session shall take cognizance of any offence as a Court
\nof original jurisdiction unless the case has been committed to it by a
\nMagistrate under this Code.”\n<\/p>\n
So the first aspect to be considered is whether the Special Court is a
\nCourt of Session. Chapter II of the Code deals with “Constitution of
\nCriminal Courts and Offices”. Section 6, which falls thereunder says that
\n“there shall be, in every State,the following classes of Criminal Courts,
\nnamely :\n<\/p>\n
(i) Courts of session;”<\/p>\n
(The other classes of criminal courts enumerated thereunder are not
\nrelevant in this case and hence omitted.)<\/p>\n
Section 14 of the Act says that “for the purpose of providing for speedy
\ntrial, the State Government shall, with the concurrence of the Chief
\nJustice of the High Court, by notification in the Official Gazette, specify
\nfor each district a Court of Session to be a Special Court to try the
\noffences under this Act”. So it is for trial of the offences under the Act
\nthat a particular Court of Session in each district is sought to be
\nspecified as a Special Court. Though the word “trial” is not defined either
\nin the Code or in the Act it is dearly distinguishable from inquiry. The
\nword “inquiry” is defined in Section 2(g) of the Code as. “every inquiry,
\nother than trial, conducted under this Code by a magistrate or court”. So
\nthe trial is distinct from inquiry and inquiry must always be a forerunner
\nto the trial. The Act contemplates only the trial to be conducted by the
\nSpecial Court. The added reason for specifying a Court of Session as
\nspecial Court is to ensure speed for such trial. “Special Court” is defined
\nin the Act as “a Court of Session specified as a Special Court in Section
\n14”, [vide S.2(l)(d)]<\/p>\n
Thus the Court of Session is specified to conduct a trial and no other
\ncourt can conduct the trial of offences under the Act. Why the Parliament
\nprovided that only a Court of session can be specified as a Special Court?
\nEvidently the legislature wanted the Special Court to be Court of Session.
\nHence the particular Court of Session, even after being specified as a
\nSpecial Court, would continue to be essentially a Court of Session and
\ndesignation of it as a Special Court would not denude it of its character
\nor even powers as a Court of Session. The trial in such a court can be
\nconducted only in the manner provided in Chapter XVIII of the Code which
\ncontains a fasciculus of provisions for “Trial before a Court of Session”.\n<\/p>\n
Section 193 of the Code has to be understood in the aforesaid backdrop. The
\nsection imposes an interdict on all Courts of Session against taking
\ncognizance of any offence as a court of original jurisdiction. It can take
\ncognizance only if “the case has been committed to it by a magistrate”, as
\nprovided in the Code, Two segments have been indicated in Section 193 as
\nexceptions to the aforesaid interdict. One is, when the Code itself has
\nprovided differently in express language regarding taking of cognizance,
\nand the second is when any other law has provided differently in express
\nlanguage regarding taking cognizance of offences under such law. The word
\n“expressly” which is employed in Section 193 denoting to those exceptions
\nis indicative of the legislative mandate that a Court of Session can depart
\nfrom the interdict contained in the section only if it is provided
\ndifferently in clear and unambiguous terms. In other words, unless it is
\npositively and specifically provided differnetly no Court of Session can
\ntake cognizance of any offence directly, without the case being committed
\nto it by a magistrate.\n<\/p>\n
Neither in the Code nor in the Act there is any provision whatsoever, not
\neven by implication, that the specified Court of Session (Special Court)
\ncan take cognizance of the offence under the Act as a court of original
\njurisdiction without the case being committed to it by a magistrate. If
\nthat be so, there is no reason to think that the charge-sheet or a
\ncomplaint can straightway be filed before such Special Court for offences
\nunder the Act. It can be discerned from the hierarchical settings of
\ncriminal courts that the Court of Session is given a superior and special
\nstatus. Hence we think that the legislature would have thoughtfully
\nrelieved the Court of Session from the work of performing all the
\npreliminary formalities which magistrates have to do until the case is
\ncommitted to the Court of session.\n<\/p>\n
We have noticed from some of the decisions rendered by various High Courts
\nthat contentions were advanced based on Sections 4 and 5 of the Code as
\nsuggesting that a departure from Section 193 of the Code is permissible
\nunder special enactments. Section 4 of the Code contains two sub-sections
\nof which the first sub-section is of no relevance since it deals only with
\noffences under the Indian Penal Code. However, sub-section (2) deals with
\noffences under other laws and hence the same can be looked into. Sub-
\nsection (2) of Section 4 is extracted below :\n<\/p>\n
“All offences under any other law shall be investigated, inquired into,
\ntried, and otherwise dealt with according to the same provisions, but
\nsubject to any enactment for the time being in force regulating the manner
\nor place of investigating, inquiring into, trying or otherwise dealing with
\nsuch offences.”\n<\/p>\n
A reading of the sub-section makes it clear that subject to the provisions
\nin other enactments all offences under other Jaws shall also be
\ninvestigated, inquired into, tried and otherwise dealt with under the
\nprovision of the Code, This means that if other enactment contains any
\nprovision which is contrary to the provisions of the Code, such other
\nfunctions would apply in place of the particular provision of the Code, If
\nthere is no such contrary provision in other laws, then provisions of the
\ncode would apply to the matters covered thereby. This aspect has been
\nemphasised by a Constitution Bench of this Court in paragraph 16 of the
\ndecision in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr.,<\/a> [1984] 2 SCC\n<\/p>\n
500. It reads thus :\n<\/p>\n
“Section 4(2) provides for offences under other law which may be
\ninvestigated, inquired into, tried and otherwise dealt with accord-ing to
\nthe provisions of the Code of Criminal Procedure but subject to any
\nenactment for the time being in force regulating the manner or place of
\ninvestigation, inquiring into, trying or otherwise dealing with such
\noffences. In the absence of a specific provision made in the statute
\nindicating that offences will have to be investigated, inquired into, tried
\nand otherwise dealt with according to that statute, the same will have to
\nbe investigated, inquired into, tried and otherwise dealt with according to
\nthe Code of Criminal Pro-cedure. In other words, Code of Criminal Procedure
\nis the parent statute which provides for investigation, inquiring into and
\ntrial of cases by criminal courts of various designations.”\n<\/p>\n
Nor can Section 5 of the Code be brought in aid for supporting the view
\nthat the Court of Session specified under the Act can obviate the interdict
\ncontained in Section 193 of the Code as long as there is no provision in
\nthe Act empowering the Special Court to take cognizance of the offence as a
\ncourt of original jurisdiction. Section 5 of the Code reads thus :\n<\/p>\n
“5. Saving. – Nothing contained in this Code shall, in the absence of a
\nspecific provision to the contrary, affect any special or local law for the
\ntime being in force, or any special jurisdiction or power conferred, or any
\nspecial form of procedure prescribed, by any other law for the time being
\nin force.”\n<\/p>\n
This Court, on a reading of Section 5 in juxtaposition with Section 4(2) of
\nthe Code, has held that “it only relates to the extent of application of
\nthe Code in the matter of territorial and other jurisdiction but does not
\nnullify the effect of Section 4(2); In short, the provisions of this Code
\nwould be applicable to the extent, in the absence of any contrary provision
\nin the special Act or any special provision including the jurisdiction or
\nap-plicability of the Code.” (vide para 128 in Directorate of Enforcement
\nv. Deepak Mahajon,<\/a> [1994] 3 SCC 440.\n<\/p>\n
Hence we have no doubt that a Special Court under this Act is essentially a
\nCourt of Session and it can take cognizance of the offence when the case is
\ncommitted to it by the magistrate in accordance with the provisions of the
\nCode. In other words, a complaint or a charge sheet cannot straightway be
\nlaid before the Special Court under the Act.\n<\/p>\n
When this question was considered by various High Courts, the High Courts
\nof Madhya Pradesh, Allahabad, Patna and Punjab & Haryana have adopted the
\nview consistent with the view which we have stated above. (vide Meerabai v.
\nBhujbal Singh, (1995) Crl. L.J. 2376 MP; Papu Singh v. State of U.P.,
\n(1995) Crl LJ, 2803 Allahabad; Jhagurmahto v. State of Bihar, (1993) 1
\nCrimes 643 Patna; Jyoti Arora v. State of Haryana, (1998) 2 Crl. L.R. 73
\nP.& H. But it seems that the only High Court which took a contrary view is
\nthe High Court of Kerala, At first a Division Bench of that High Court took
\nthe view that the Special Court can straightway take cognizance of the
\noffence under the Act and proceed with the trial unaffected by Section 193
\nof the Code. (vide In re: Director General of Prosecution, (1993) Crl. L.J.
\n760 – (1992) 2 Kerala Law Times 748. One of the Judges of the Division
\nBench sought support to it from the observations of this Court in A.R.
\nAntulay’s decision (supra) and then observed that “the same principle would
\napply because of the effect of the transmutation of the Session Court as a
\nSpecial Court.”\n<\/p>\n
When the correctness of the above decision was later doubted by the same
\nHigh Court the question was referred to a larger beach. In Hareendran v.
\nSarada, (1996) 1 ALT Crl, 162 = (1995) 1 KLT 23 a Full Beach of that High
\nCourt affirmed the view of the Division Bench aforesaid. The Full Bench put
\nforward mainly two reasons for adoptbg the said interpretation. First is
\nthat Section 20 of the Act stipulated that provisions of the Act shall have
\neffect notwithstanding anything inconsis-tent therewith contained in any
\nother law for the time being in force. As the section gives overriding
\neffect for the provisions of the Act and it was enacted with a view to
\nprevent commission of offence of atrocities against the member of the
\nScheduled Castes and Scheduled Tribes, the Full Bench felt that “it is
\nrather difficult for us to hold that the committal proceedings is
\nindispensable as a prelude to the case being tried by the Special Court.”
\nSecond is that, there is nothing in the Act to indicate that the Special
\nCourt would get jurisdiction only on a committal order made by the
\nmagistrate.\n<\/p>\n
The very approach of the Full Bench of the Kerala High Court seems to be
\nthat there should be specific indication in the Act that the Special Court
\ngets jurisdiction to try the offence only on a committal order, and in the
\nabsence of such specific indication the Special Court must have the right
\nto take cognizance of the offence as though it is a court of original
\njurisdiction. We have pointed out above that unless there is express
\nprovision to the contrary in any other law the interdict contained in
\nSection 193 of the Code cannot be circumvented. Hence the reasoning of the
\nFull Bench in Hareendran v. Sarada (supra) is apparently fallacious.\n<\/p>\n
In fact all the other High Courts which dealt with this question (the
\ndecisions of which were cited supra) have dissented from the aforesaid view
\nof the Full Bench of the Kerala High Court, after adverting to the reasons
\nadvanced by the Full Bench. A Division Bench of the Andhra Pradesh High
\nCourt after referring to the Full bench decision in Hareendran v. Sarada
\n(supra) made the following observations in Referring Officer rep. By State
\nof A.P. v. Shekar Nair, (1999) 3 ALT 533 = (1999) Crl. L.J 4173 :\n<\/p>\n
“We find it difficult to agree with the reasoning of the Kerala High Court
\nin the two decisions referred to above. As already observed by us, in the
\nabsence of a particular procedure prescribed by the said Act as regards the
\nmode of taking cognizance, enquiry or trial, the procedure under the Code
\nwill have to be applied by reason of Section 4(2) of the Code as clarified
\nby the Supreme Court in the case of Directorate of Enforcement (AIR (1994)
\nSC 1775). There is no provision in the Act which excludes the application
\nof Section 193, Cr. P.C. The mere fact that no procedure is prescribed or
\nspecified under the Special Act does not mean that the Special Act
\ndispenses with the procedure for committal in the Case triable by Court of
\nSessions and that the Special Court gets original jurisdiction in the
\nmatter of initiations, enquiry or trial. There is no good reason why the
\nprocedural provisions of Code relating to power and mode of taking
\ncognizance including Section 193 should not be applied to the Special
\nCourt.”\n<\/p>\n
We are of the considered opinion that the Division Bench of the Andhra
\nPradesh High Court has stated the legal position correctly in the above
\ndecision.\n<\/p>\n
It must be noted that the observations of this Court in (A.R. Antulay
\n(supra) were made in connection with the establishment of a Special Court
\nunder Criminal Amendment Act of 1952. What is to be pointed out is that a
\nSpecial Judge appointed under the said Act was given the specific power to
\ntake cognizance of the offence without the case being committed to him.
\nHence the observations in A.R. Antuley’s case cannot be profitably utilized
\nto support the interpretation of another Act wherein there is no such
\nspecific provision.\n<\/p>\n
It is contextually relavant to notice that Special Courts created under
\ncertain other enactments have been specially empowered to take cog-nizance
\nof the offence without the accused being committed to it for trial, (e.g.
\nSection 36-A(l)(d) of the Narcotics Drugs and Psychotropic Substan-ces
\nAct). It is significant that there is no similar provision in the Scheduled
\nCastes Scheduled Tribes (Prevntion of Atrocities) Act.\n<\/p>\n
We therefore, hold that the legal postition stated in the decisions of the
\nKerala High Court in Re Director General prosecutions and Hareendran v.
\nSarada, is not in accordance with law. We approve the interpretation
\nadopted by the other High Courts in the decisions referred to above as the
\ncorrect legal position.\n<\/p>\n
So the High Court of Andhra Pradesh has rightly set aside, as per the
\nimpugned order, the proceedings initiated by the special Court Specified
\nunder the Act. But we do not support the directions given by the learned
\nSingle Judge in his order that after committal of the case the special
\nCourt shall frame charge against the appellants. It is for the Special
\nCourt to decide regarding the action to be taken next, after hearing both
\nsides as provided in Section 227 of the Code. No direction can be given to
\nthe Special Court at this premature stage as to what the court should adopt
\nthen. It is open to the appellants to raise all their contentions at that
\nstage if they wish to make a plea for discharge. We make it clear that if
\nany such plea is made the Judge of the Special Court shall pass appropriate
\norders untrammeled by the observations made in the impugned order.\n<\/p>\n
With the said directions and observations we disposed of this appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gangula Ashok And Anr vs State Of Andhra Pradesh on 28 January, 2000 Bench: K.T. Thomas, M.B.Shah CASE NO.: Appeal (crl.) 94 of 2000 PETITIONER: GANGULA ASHOK AND ANR. RESPONDENT: STATE OF ANDHRA PRADESH DATE OF JUDGMENT: 28\/01\/2000 BENCH: K.T. THOMAS & M.B.SHAH JUDGMENT: JUDGMENT 2000 (1) SCR 468 The Judgment […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-31315","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGangula Ashok And Anr vs State Of Andhra Pradesh on 28 January, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gangula-ashok-and-anr-vs-state-of-andhra-pradesh-on-28-january-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gangula Ashok And Anr vs State Of Andhra Pradesh on 28 January, 2000 - 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