1. By way of these appeals, appellants – original accused nos. 1 & 2 have challenged the judgment and order dated 22/6/1994, by which, Special Judge (Court no. 12), Ahmedabad in Atrocity Criminal Case no. 6/1994 has convicted the appellants under section 3(1)(10) of the Schedule Castes & Schedule Tribes (Prevention of Atrocities) Act, 1989 and under section 353, 504 and 506 (2) of the Indian Penal Code and sentenced to undergo simple imprisonment for six months and fine of Rs. 500/ and in default, simple imprisonment for seven days, simple imprisonment for ten days and fine of Rs. 100/ and in default, simple imprisonment for three days, simple imprisonment for one month and fine of Rs. 200/ and in default, simple imprisonment for five days, simple imprisonment for six months and fine of Rs. 1000/ and in default, simple imprisonment for ten days imposed upon them respectively. It is further ordered that all sentences shall run concurrently.
2. The brief facts arising out from the record of the case are as under:
(i) One Harishchandra Nekram Ghanak resident at Ahmedabad lodged a private complaint in the Court of Special Judge (Court No. 12) in the City Sessions Court at Ahmedabad for the offence under the provision of sections 3 & 7 of the Schedule Castes and Schedule Tribes (Prevention of Atrocity) Act, 1989 (for short, “the Atrocity Act”) and under section 506(2) read with section 114 of the Indian Penal Code and alleged that the present appellants had used abusive language with regard to their caste and gave threats that if the amount is demanded by the complainant, he shall be done to death.
(ii) Learned Special Sessions Judge, who was appointed as a Special Judge under the provision of section 14 of the Act, directed the Investigating Officer G.I.D.C., Vatva Police Station, Ahmedabad to submit the report within two months by order dated 12/9/1993. The order was passed under Section 156(3) of the Code. Pursuant to the order, after investigating the case, Police Inspector had found sufficient material against the accused persons and therefore submitted charge sheet in the Court of learned Special City Sessions Judge on 15/2/1994. Learned Special Sessions Judge, after considering the evidence, which was submitted by the Police Inspector, framed charge at Exh 1 under the provisions of the Atrocities Act as well as under the provisions of Indian Penal Code. On denial of the charge levelled against the accused persons, learned Special Judge proceeded with the trial and after recording depositions of the several witnesses and perusing the documentary evidence, held that the accused persons were guilty of the charge levelled against them and convicted for the same and were sentenced for the same as stated hereinabove.
3. Mr. S.A.Khan, learned advocate appearing for the appellant has submitted that the case which is tried by Special Judge, from its inception is barred by law and against the settled principle of law and provisions of Section 193 of the Code of Criminal Procedure, 1973 read with section 14 of the Atrocity Act. He has submitted that learned Special Judge ought not to have considered the complaint lodged by the complainant directly in the Court of Special Judge and ought not to have issued order under section 156(3) in absence of any special provisions under the Atrocity Act. He has further submitted that under section 193 of Code, the Sessions Court can not take cognizance of any offence as a Court of original jurisdiction, unless, the case has been committed to it by the Magistrate under this Code. In the present case, the case was not committed by any Magistrate, therefore, learned Special Judge ought not to have taken any cognizance of the case and proceeded with the case. On merits also, he has assailed the judgment of the Trial Court that the depositions of the complainant and other witnesses are contradictory in nature. Therefore, also the say of the complainant about the incident creates doubts and therefore, benefits should be given to the appellant.
4. On the other hand, Mr. L.B.Dabhi, learned APP has opposed these appeals.
5. I have perused the record and proceeding and have gone through the depositions of eight witnesses, who were examined by the prosecution and have also gone through the documentary evidence proved by the prosecution. In my view, the first contention raised by the appellants, is required to be accepted in the facts and circumstances of the case.
6. Section 14 of the Atrocity Act, empowers the State Government with the concurrence of the Chief Justice of the High Court that, 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. Section 6 of the Code provides classes of Criminal Courts and Court of Sessions is one of it. Section 193 of the Code provides that Court of Sessions can not 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, except as otherwise expressly provided by this Code or by any other law for the time being in force. In the present case, there is no provision under the Atrocity Act that a Special Court can take cognizance of any offence committed by the accused. In the present case, a private complaint was lodged in the Court of Special Judge, who took cognizance of it and sent the matter for investigation under the provision of Section 156(3) of the Code. It is an admitted position in the present case that the Police had submitted chargesheet in the Court of Special Judge and not in the Court of learned Magistrate. Therefore, there was no question of committing the same under the provisions of Code.
7. In case of Moly Vs. State of Kerala reported in 2004 (4) SCC 584, the Honourable Apex Court observed in paras 5 to 12 are as under:
“5. Pristine question to be considered is whether the Special Judge could take cognizance of the offence straight away without the case being committed to him. If the Special court is a Court of Session, the interdict contained in Section 193 of the Code of Criminal Procedure, 1973 (for short the 'Code') would stand in the way. It reads thus:
"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."
6. So the first aspect to be considered is whether the Special Court is a Court of Session. Chapter II of the Code deals with "Constitution of Criminal Courts and Offices". Sections which falls thereunder says that :
“6. "there shall be, in every State, the following classes of criminal courts, namely:
(i) Courts of Sessions;"
7. The other classes of criminal courts enumerated thereunder are not relevant in this case and need not be extracted.
8. Section 14 of the Act Says that:
"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."
9. So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word 'trial' is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word 'inquiry' is defined in Section 2(g) of the Code as 'every inquiry, other than a trial, conducted under this Code by a Magistrate or court'. So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as a Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14" (vide Section 2(1)(d).
10. Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why did Parliament provide that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be a Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fascicules of provisions for 'trial before a Court of Session".
11. 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 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.
12. 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.”
8. In view of the settled legal position, I am of of the view that the Trial Court ought not to have taken cognizance of the offence and proceeded with the trial.
9. Now considering the merits of the case, it appears that there was some dispute about the money transactions between the original accused no. 2 and the complainant and it has also come on record that the cheque of Rs. 4200/ was given by accused no. 2 to the brother of the complainant. Except one riksha driver, no independent witness is examined by the prosecution. I found contradiction in the deposition of complainant PW 5 at Exh 19 as well as his brother Ramesh Chandra PW 6 at Exh 25 and the deposition of riksha driver, who has been examined as PW 3 at Exh 14. It is an admitted position that neither the complainant nor witnesses sustained any injury in the alleged incident. The say of the complainant that he had paid Rs. 15,000/ towards the commission to appellant no. 1, who was medical practitioner could not prove the same before the Trial Court. The complaint, the same was lodged with the assistance of Lawyer after two days of incident, which creates doubts in the mind of the Court.
10. Hence, both the appeals are allowed. The judgment and order dated 22/6/1994, by which, the learned Special Judge (Court no. 12), Ahmedabad in Atrocity Criminal Case No. 6/94 convicted the appellants, is hereby quashed and set aside. The bail bonds shall stand cancelled. Fine paid, if any, shall be returned.
(A.J.DESAI, J) *asma