# Sumit v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Application U/S 482 No. 491 of 2020
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumit-v-state-of-u-p-anr-45787
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
&
Indian
Penal Code, 1862-Sections 147, 148, 149,
302 & SC/ST Act, 1989-Section 3(2)(V)-
challenge to-order passed by special judge,
SC/ST Act-offences u/s 302 can never be tried
by the Special Court established u/s 14 of the

SC/ST
Act
while
all
other
special
Acts
categorically make provision for those cases
under such Special Act, can jointly be tried
along with other offences under Other Acts- a
proviso has been added by way of new
amendment in section 14 of the SC/ST Act
w.e.f. 26.01.2016 that special court established
under this Act shall have power to directly take
cognizance without taking recourse to section
193 Crpc for the commitment of the case
because that would result in delay-merely
because commitment was not made, all the
proceedings would not vitiate the trial on the
ground alone as it is necessary to show that by
non-compliance, failure of justice had occurred
or any deep prejudice was caused to the
accused-principle of prejudice or failure of
justice be taken into consideration-special court
u/s 14 of the SC/ST Act is also conferred with
the power of Session judge-the intention of the
legislature is to ensure that even if the offence
is found to have been committed under IPC as
well as under SC/ST Act, the same should be
tried by one court i.e. Special Court which has
been conferred power to minimize the delay in
disposal of the case-cognizance taken by trial
court does not suffer from any infirmity. (Para
6, 8,11 ,13)

B. It is the duty of the court to see that victim's
right is protected. A direction for retrial is to put
the clock back and it would be a travesty of
justice to so direct if the trial really has not been
unfair and there has been no miscarriage of
justice. The legislature deliberately obliterated
certain rights conferred on the accused at the
committal stage under the new Code. The
intention of the legislature to sub serve the
substantive objects of the criminal trial.(Para
10)

The application is dismissed. (E-6)

List of Cases Cited:-
68 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,939 of 49,563. This is a partial read: ask again with offset=39939 for what follows._

6 All. Sumit Vs. State of U.P. & Anr.
67
sustainable. It is worth to notice paragraph
no. 24 & 25 of the written statement wherein
they have stated about payment of Rs.13
lakhs
as
an
advance
towards
sale
consideration in compliance of agreement to
sell but no details as to how Rs.13 lakhs has
been paid have been given in the written
statement. The applicants in their evidence
for the first time disclosed that out of Rs.13
lakhs paid in advance, Rs.6 lakhs has been
paid through cheques on various dates and
Rs.7 lakhs in cash and there is no
independent evidence on record to support
the testimony of applicants for payment of
Rs.7 Lakhs in cash. Therefore, this court
does not find any merit in the aforesaid
submission of the counsel for the applicant.
However, if the applicants desire to recover
the amount alleged to have been paid by
them, they may, if so advised, take recourse
to the remedy available to them in law.

44. Thus, for the reasons given above,
the revision lacks merit and is accordingly,
dismissed. There shall be no order as to
costs.
----------
(2020)06ILR A67
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Application U/S 482 No. 491 of 2020

Sumit ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mohd. Rashid Siddiqui, Sri Abhinav
Gaur, Sri Anoop Trivedi

Counsel for the Opposite Parties:
A.G.A.
A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
&
Indian
Penal Code, 1862-Sections 147, 148, 149,
302 & SC/ST Act, 1989-Section 3(2)(V)-
challenge to-order passed by special judge,
SC/ST Act-offences u/s 302 can never be tried
by the Special Court established u/s 14 of the

SC/ST
Act
while
all
other
special
Acts
categorically make provision for those cases
under such Special Act, can jointly be tried
along with other offences under Other Acts- a
proviso has been added by way of new
amendment in section 14 of the SC/ST Act
w.e.f. 26.01.2016 that special court established
under this Act shall have power to directly take
cognizance without taking recourse to section
193 Crpc for the commitment of the case
because that would result in delay-merely
because commitment was not made, all the
proceedings would not vitiate the trial on the
ground alone as it is necessary to show that by
non-compliance, failure of justice had occurred
or any deep prejudice was caused to the
accused-principle of prejudice or failure of
justice be taken into consideration-special court
u/s 14 of the SC/ST Act is also conferred with
the power of Session judge-the intention of the
legislature is to ensure that even if the offence
is found to have been committed under IPC as
well as under SC/ST Act, the same should be
tried by one court i.e. Special Court which has
been conferred power to minimize the delay in
disposal of the case-cognizance taken by trial
court does not suffer from any infirmity. (Para
6, 8,11 ,13)

B. It is the duty of the court to see that victim's
right is protected. A direction for retrial is to put
the clock back and it would be a travesty of
justice to so direct if the trial really has not been
unfair and there has been no miscarriage of
justice. The legislature deliberately obliterated
certain rights conferred on the accused at the
committal stage under the new Code. The
intention of the legislature to sub serve the
substantive objects of the criminal trial.(Para
10)

The application is dismissed. (E-6)

List of Cases Cited:-
68 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Rati Ram & ors. Vs. St. Of M.P. (2012) 4 SCC
516

2. Moly Vs St. Of Kerala, (2004) 4 SCC 584

3. Vidya dharan Vs St. Of Kerala (2004) 1 SCC
215

4. Bhooraji Vs St. Of M.P. (2001) 7 SCC 679

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Sri Anoop Trivedi learned
Senior Advocate assisted by Sri Abhinav
Gaur, learned counsel for the applicant, Sri
B.A. Khan, learned A.G.A. appearing for
the State and perused the record.

2. This application under Section 482
Cr.P.C has been moved with a prayer to
quash the orders dated 05.09.2017 and
17.08.2019 passed by the Special Sessions
Judge, SC/ST Act, Meerut in S.S.T. No.
5031 of 2016 (State vs. Sanjay and others)
arising out of Case Crime No. 192 of 2016
under sections 147, 148, 149, 302 IPC and
3 (2) (V) of SC/ST Act as well as chargesheets dated 02.10.2016 and 30.11.2016
and also a prayer is made to stay the
proceedings in this case till the disposal of
this application.

3. In order to understand and
appreciate the argument of the learned
counsel for the applicant, it would be
appropriate to give in brief the facts of this
case as they emerged from the FIR.

4. The opposite party no. 2 Mitan Kumar
has lodged an FIR dated 13.7.2016 stating
therein that about 1 1⁄2 months ago a quarrel had
happened between him and co-villagers
accused-applicant Sumit and co-accused Sujeet
and because of that the accused-applicant and
other co-accused were having enmity towards
elder brother of the applicant Chetan. On
13.7.2016 when his elder brother Chetan was
returning home with his mother Savitri Devi
and when all of them reached near the
sugarcane field of Vedpal, one motorcycle came
from behind, on which the accused-applicant
along with co-accused Sujeet, Sumit and Sanjai
came there, while another accused Ashok who
was already hiding in the sugarcane field also
came out on the road and started saying ''Aaj Is
Chamte ke Bhure Ko Dekh Lo' and they all
gheraoved his elder brother Chetan and opened
fire upon him and when his mother came to
save him, these people also pointed out their
weapon towards her and told her to remain
quiet otherwise she would also be shot dead.
His brother after receiving injuries of bullet, fell
down and died on the spot while all the five
accused including the applicant fled from there
threatening that whoever would incur their
enmity would have to face the same
consequence. The informant did not chase them
because of fear and after the accused fled from
there, on the alarm being raised by the
informant and also hearing the sound of gun
fire, no one came because of fear.

5. On the basis of the written report, a
case was registered as Case Crime No. 192
of 2016 under sections 147, 148, 149, 302
IPC and section 3 (2) (v) of SC/ST Act
against the accused-applicant and four
other accused named in the FIR. After
investigation, charge-sheet against the
accused-applicant
has
been
filed
on
2.10.2016 under
the
above-mentioned
sections and on the basis of evidence on
record
against
the
accused-applicant,
charges
under
the
above-mentioned
sections were framed on 5.9.2017.

6. An application 93-Kha was moved
thereafter from the side of the applicant and
two other co-accused namely, Ashok and
Sanjay stating therein that cognizance of
6 All. Sumit Vs. State of U.P. & Anr.
69
the offence under sections 302, 147, 148,
149 IPC has been taken directly by the
court below by-passing the provision of
section 193 Cr.P.C. Cognizance of the
offence under SC/ST Act is taken under
proviso to section 14 (1) of the said Act.
The proviso to Section 14 (1) of the SC/ST
Act provides that "the courts so established
or specified, shall have power to directly
take cognizance of offences under this
Act". Further it is mentioned that section 6
of this Act provides that "Subject to the
other provisions of this Act, the provisions
of section 34, Chapter III, Chapter IV,
Chapter V-A section 149, and Chapter
XXIII of IPC, shall, so far as may be, apply
for the purposes of this Act as they apply
for the purpose of IPC. Further, It is
mentioned that section 6 of the Act, makes
it clear that other offences either in IPC or
any other Act never have their application
under this Act. Further it is mentioned that
SC/ST Act nowhere provides that all other
cases which can be jointly charged with,
under the Code of Criminal Procedure, be
charged at the same trial, and as such
offences under section 302 IPC can never
be tried by the Special Court established
under section 14 of the SC/ST Act. Further
it is mentioned that all other special Acts
categorically make provision for those
cases under such special Act, can jointly be
tried along with other offences under other
Acts, which can be jointly tried under
Cr.P.C. Further, it is mentioned that the
Special Act under Prevention of Corruption
Act specifically provides section 4(3) "that
a Special Judge under Prevention of
Corruption Act, may also try an offence
other than an offence specified in section 3
with which the accused may under Cr.P.C.
be charged at the same trial. Similarly, the
U.P. Gangster Act also provides under
section 8 of the Act, the procedure for joint
trial of cases under section 2/3 of U.P.
Gangster Act along with offences under
IPC or other Act, but no such provision
exists under SC/ST Act 1988. Further it is
mentioned that section 3(2)(v) of SC/ST
Act clearly provides punishments for those
offences
under
IPC
punishable
with
imprisonment for a term of 10 years or
more against a person or property of any
member belonging to Scheduled Castes and
Scheduled Tribes. As such it is clear that
offences under section 302 IPC can never
be tried by Special Court established under
SC/ST Act. It is further pointed out that one
of the accused in the present case namely,
Prakash belongs to Scheduled Caste.
Further, it is mentioned that the offence
under section 3(2)(v) of SC/ST Act in the
present case, could be tried along with
sections 147, 148, 149 IPC but it cannot
jointly be tried along with section 302 IPC.
Further, it is mentioned that the cognizance
of offence under section 302/147/149 IPC
could not be taken under section 14 of the
SC/ST Act and provisions of sections 207
to 209 and section 193 Cr.P.C. should have
been followed. Further it is mentioned that
it is expedient in the interest of justice that
the charges under section 302/147/148/149
IPC be dropped against the applicant and
prosecution should be directed to file a
report under section 173 (8) Cr.P.C. before
the Court having jurisdiction.

7. Upon consideration of this application,
the trial court has passed the impugned order
which shows that in the present case entire
evidence of prosecution has been recorded and
the case is at the stage of recording the
statement of accused under section 313 Cr.P.C.
and further the case has to be decided
expeditiously as per direction of High Court.
Further, it is mentioned that in the present
matter after taking cognizance against the
accused applicant Sumit, charge was framed on
05.09.2017, although against other accused,
70 INDIAN LAW REPORTS ALLAHABAD SERIES
charges were framed on separate date after
having taken into consideration the prosecution
documents. The said order has not been
challenged at any stage by the accused till the
conclusion of the prosecution evidence.
Therefore, the objections which have been
raised at this stage, they would be disposed of,
in the interest of justice, at the time of final
delivery of judgment and hence there was no
justifiable reason to pass order on the said
application at this stage and the direction is
given that the accused shall appear on
21.8.2019 for getting his statement recorded
under section 313 Cr.P.C. for which he should
appear in person.

8. The submission which has been
advanced by the learned counsel for the
applicant is that the trial court could not
have taken cognizance under section 302
IPC because the same would require
committal of the case by the court of
Magistrate to the Court of Sessions as has
been provided under section 193 Cr.P.C.
which provide that 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 the Code of Criminal
Procedure. Although he did admit that w. e.
f. 26.1.2016, by way of new amendment in
section 14 of the SC/ST Act, a proviso has
been added which shows that special court
established under this Act shall have power
to directly take cognizance of offence under
this Act. However, he has relied upon a
judgment of Hon'ble Apex Court decided
on 17.2.2012 i.e. Rati Ram and others vs.
State of Madhya Pradesh, Criminal
Appeal No. 223 of 2008 along with
connected appeal [(2012) 4 SCC 516],
which is of earlier date i.e. prior to the
amendment in the said Act. In this
judgment, the matter was referred to Larger
Bench
in
order
to
deal
with
the
contradictory views as regards the effect
and impact of not committing an accused in
terms of section 193 Cr.P.C. in cases where
charge sheet is filed under section 3 (1) (x)
of SC/ST Act and cognizance is directly
taken by the Special Judge under the Act.
In Moly vs. State of Kerala, (2004) 4
SCC 584, Vidya dharan vs. State of
Kerala, (2004) 1 SCC 215, on the one
hand wherein it has been held that the
conviction by Special
Court
is not
sustainable if Investigating Officer has suo
motu entertained and taken cognizance of
the complaint directly without the case
being committed to it, and therefore there
should be retrial or total setting aside of the
conviction as the case may be, and on the
other hand, in State of M.P. Vs. Bhooraji,
(2001) 7 SCC 679, wherein taking aid
under section 465 (1) of the code, it has
been opined that when a trial has been
conducted by the Court of competent
jurisdiction and a conviction has been
recorded
on
proper
appreciation
of
evidence, the same cannot be erased or
effaced merely on the ground that there had
been
no
committal
proceedings
and
cognizance was taken by the Special Court,
inasmuch as the same does not give rise to
failure of justice.

9. It is further mentioned in this
judgment that the facts were that the
appellants
were
charge-sheeted
under
section 3 (1) (x) of the Act but eventually
the charges were framed under sections
147, 148 and 302 read with section 149 of
IPC. The trial court vide judgment and
order dated 31.8.1996 convicted all the
accused
persons
barring
Mohan
for
offences under section 302 read with 149
IPC and sentenced them to imprisonment
for life with a fine of Rs.one thousand and
in default of payment of fine, to suffer
further R.I. for three months and sentenced
6 All. Sumit Vs. State of U.P. & Anr.
71
to one month's R.I. under section 147 IPC.
The accused Mohan was convicted for the
offences under section 148 and 302 IPC
and was sentenced to undergo one month's
R.I. on the first score and to further life
imprisonment and to pay a fine of Rs.one
thousand , in default of payment of fine, to
suffer further R.I. for three months on the
second count.

10.
Being
dissatisfied
with
the
judgment of conviction and the order of
sentence, the appellant along with others
preferred Criminal Appeal No. 1568 of
1996 before the High Court of Judicature of
Madhya Pradesh at Jabalpur. Apart from
raising various contentions on merits, it
was pressed that the entire trial was vitiated
as it had commenced and concluded
without committal of the case to the Court
of Sessions as provided under section 193
of the Code. In this judgment very deep
comparison is made of the committal
procedure as provided under unamended
Cr.P.C. as well as the procedure which has
been laid in the amended Cr.P.C and it
would be relevant to record here-in-below
the relevant paragraphs from the judgment
in order to understand the reasoning given
by Hon'ble Apex Court as to why it found
that in the present case there occurred no
failure of justice and did not hold the
proceedings vitiated only on account of
non-committal
of
proceedings
under
section 193 Cr.P.C. Paragraph nos. 51 to 68
of the judgment are quoted as under:

"51. Section 209 of the Code
deals with the commitment of case to the
Court of Session when an offence is triable
exclusively by it. The said provision reads
as follows:

"209.Commitment of case to
Court of Session when offence is triable
exclusively by it.--When in a case instituted
on a police report or otherwise, the
accused appears or is brought before the
Magistrate and it appears to the Magistrate
that the offence is triable exclusively by the
Court of Session, he shall--

(a) commit, after complying with the
provisions of Section 207 or Section 208, as the
case may be, the case to the Court of Session,
and subject to the provisions of this Code
relating to bail, remand the accused to custody
until such commitment has been made;

(b) subject to the provisions of this
Code relating to bail, remand the accused to
custody during, and until the conclusion of, the
trial;

(c) send to that court the record of
the case and the documents and articles, if any,
which are to be produced in evidence;

(d) notify the Public Prosecutor of
the commitment of the case to the Court of
Session."

52. Prior to coming into force of the
present Code, Section 207 of the Code of
Criminal Procedure, 1898 dealt with committal
proceedings. By the Criminal Law Amendment
Act, 1955, Section 207 of the principal Act was
substituted by Sections 207 and 207-A. To
appreciate the inherent aspects and the
conceptual
differences
in
the
previous
provisions and the present one, it is imperative
to reproduce Sections 207 and 207-A of the old
Code. They read as under:

"207.Procedure
in
inquiries
preparatory to commitment.--In every inquiry
before a Magistrate where the case is triable
exclusively by a Court of Session or High
Court, or, in the opinion of the Magistrate,
ought to be tried by such court, the Magistrate
shall--

(a) In any proceeding instituted on a
police report, follow the procedure specified in
Section 207-A; and

(b) In any other proceeding, follow
the procedure specified in the other provisions
of
this
Chapter.
72 INDIAN LAW REPORTS ALLAHABAD SERIES

207-A.Procedure to be adopted
in proceedings instituted on police report.-
-(1) When, in any proceeding instituted on
a police report, the Magistrate receives the
report forwarded under Section 173, he
shall, for the purpose of holding an inquiry
under this section, fix a date which shall be
a date not later than fourteen days from the
date of the receipt of the report, unless the
Magistrate, for reasons to be recorded,
fixes any later date.

(2) If, at any time before such
date, the officer conducting the prosecution
applies to the Magistrate to issue a process
to compel the attendance of any witness or
the production of any document or thing,
the Magistrate shall issue such process
unless, for reasons to be recorded, he
deems it unnecessary to do so.

(3) At the commencement of the
inquiry, the Magistrate shall, when the
accused appears or is brought before him,
satisfy himself that the documents referred
to in Section 173 have been furnished to the
accused and if he finds that the accused has
not been furnished with such documents or
any of them, he shall cause the same to be
so furnished.

(4) The Magistrate shall then
proceed to take the evidence of such
persons, if any, as may be produced by the
prosecution as witnesses to the actual
commission of the offence alleged; and if
the Magistrate is of opinion that it is
necessary in the interests of justice to take
the evidence of any one or more of the
other witnesses for the prosecution, he may
take such evidence also.

(5) The accused shall be at liberty
to cross-examine the witnesses examined
under sub-section (4), and in such case, the
prosecutor may re-examine them.

(6) When the evidence referred to
in sub-section (4) has been taken and the
Magistrate
has
considered
all
the
documents referred to in Section 173 and
has, if necessary, examined the accused for
the purpose of enabling him to explain any
circumstances appearing in the evidence
against him and given the prosecution and
the accused an opportunity of being heard,
such Magistrate shall, if he is of opinion
that such evidence and documents disclose
no grounds for committing the accused
person for trial, record his reasons and
discharge him, unless it appears to the
Magistrate that such person should be tried
before himself or some other Magistrate, in
which case he shall proceed accordingly.

(7) When, upon such evidence
being
taken,
such
documents
being
considered, such examination (if any) being
made and the prosecution and the accused
being given an opportunity of being heard,
the Magistrate is of opinion that the
accused should be committed for trial, he
shall frame a charge under his hand,
declaring with what offence the accused is
charged.

(8) As soon as such charge has
been framed, it shall be read and explained
to the accused and a copy thereof shall be
given to him free of cost.

(9) The accused shall be required
at once to give in, orally or in writing, a list
of the persons, if any, whom he wishes to be
summoned to give evidence on his trial:

Provided that the Magistrate may,
in his discretion, allow the accused to give
in his list or any further list of witnesses at
a subsequent time; and, where the accused
is committed for trial before the High
Court, nothing in this sub-section shall be
deemed to preclude the accused from
giving, at any time before his trial, to the
clerk of the State a further list of the
persons whom he wishes to be summoned
to give evidence on such trial.

(10) When the accused, on being
required to give in a list under sub-section
6 All. Sumit Vs. State of U.P. & Anr.
73
(9), has declined to do so, or when he has
given in such list, the Magistrate may make
an order committing the accused for trial
by the High Court or the Court of Session,
as the case may be, and shall also record
briefly the reasons for such commitment.

(11) When the accused has given
in any list of witnesses under sub-section
(9) and has been committed for trial, the
Magistrate shall summon the witnesses
included in the list to appear before the
court to which the accused has been
committed:

Provided that where the accused
has been committed to the High Court, the
Magistrate may, in his discretion, leave
such witnesses to be summoned by the clerk
of the State and such witnesses may be
summoned accordingly:

Provided
also
that
if
the
Magistrate thinks that any witness is
included in the list for the purpose of
vexation of delay, or of defeating the ends
of justice, the Magistrate may require the
accused to satisfy him that there are
reasonable grounds for believing that the
evidence of such witness is material, and if
he is not so satisfied, may refuse to summon
the witness (recording his reasons for such
refusal), or may before summoning him
require such sum to be deposited as such
Magistrate thinks necessary to defray the
expense of obtaining the attendance of the
witness and all other proper expenses.

(12)
Witnesses
for
the
prosecution, whose attendance before the
Court of Session or the High Court is
necessary and who appear before the
Magistrate, shall execute before him bonds
binding themselves to be in attendance
when called upon by the Court of Session
or the High Court to give evidence.

(13) If any witness refuses to
attend before the Court of Session or the
High Court, or execute the bond above
directed, the Magistrate may detain him in
custody until he executes such bond or until
his attendance at the Court of Session or
the High Court is required, when the
Magistrate shall send him in custody to the
Court of Session or the High Court as the
case may be.

(14)
When
the
accused
is
committed for trial, the Magistrate shall
issue an order to such person as may be
appointed by the State Government in this
behalf, notifying the commitment, and
stating the offence in the same form as the
charge; and shall send the charge, the
record of the inquiry and any weapon or
other thing which is to be produced in
evidence, to the Court of Session or where
the commitment is made to the High Court,
to the clerk of the State or other officer
appointed in this behalf by the High Court.

(15) When the commitment is
made to the High Court and any part of the
record is not in English, an English
translation of such part shall be forwarded
with the record.

(16) Until and during the trial,
the Magistrate shall, subject to the
provisions of this Code regarding the
taking of bail, commit the accused by
warrant to custody."

53. On a bare perusal of the
abovequoted provisions, it is plain as day
that
an
exhaustive
procedure
was
enumerated prior to commitment of the
case to the Court of Session. As is
evincible, earlier if a case was instituted on
a police report, the Magistrate was
required
to
hold
enquiry,
record
satisfaction about various aspects, take
evidence as regards the actual commission
of the offence alleged and further was
vested with the discretion to record
evidence of one or more witnesses. Quite
apart from the above, the accused was at
liberty to cross-examine the witnesses and
74 INDIAN LAW REPORTS ALLAHABAD SERIES
it was incumbent on the Magistrate to
consider the documents and, if necessary,
examine the accused for the purpose of
enabling him to explain any circumstances
appearing in the evidence against him by
the prosecution and afford the accused an
opportunity of being heard and if there was
no ground for committing the accused
person for trial, record reasons and
discharge him.

54. Thus, the accused enjoyed a
substantial right prior to commitment of the
case. It was indeed a vital stage. But, in the
committal proceedings in praesenti, the
Magistrate is only required to see whether
the offence is exclusively triable by the
Court of Session. Mr Fakhruddin, learned
Senior Counsel, would submit that the use
of the words "it appears to the Magistrate"
are of immense signification and the
Magistrate has the discretion to form an
opinion about the case and not to accept
the police report.

55.
To
appreciate
the
said
submission, it is apposite to refer to Section
207 of the 1973 Code which lays down for
furnishing of certain documents to the
accused free of cost. Section 209(a) clearly
stipulates that providing of the documents
as per Section 207 or Section 208 is the
only condition precedent for commitment. It
is noteworthy that after the words, namely,
"it appears to the Magistrate", the words
that follow are "that the offence is triable
exclusively by the Court of Session". The
limited jurisdiction conferred on the
Magistrate is only to verify the nature of
the offence. It is also worth noting that
thereafter, a mandate is cast that he "shall
commit".

56. Evidently, there is a sea of
difference
in
the
proceeding
for
commitment to the Court of Session under
the old Code and under the existing Code.
There is nothing in Section 209 of the Code
to even remotely suggest that any of the
protections as provided under the old Code
has been telescoped to the existing one.

57. It is worth noting that under
the Code of Criminal Procedure, 1898, a
full-fledged
Magisterial
enquiry
was
postulated in the committal proceeding and
the prosecution was then required to
examine all the witnesses at this stage
itself. In 1955, Parliament by Act 26 of
1955 curtailed the said procedure and
brought in Section 207-A to the old Code.
Later on, the Law Commission of India in
its 41st Report, recommended thus:

"18.19.Abolition of committal
proceedings
recommended.--After
a
careful consideration we are of the
unanimous
opinion
that
committal
proceedings are largely a waste of time and
effort and do not contribute appreciably to
the efficiency of the trial before the Court
of Session. While they are obviously timeconsuming, they do not serve any essential
purpose. There can be no doubt or dispute
as to the desirability of every trial, and
more particularly of the trial for a grave
offence, beginning as soon as practicable
after the completion of investigation.
Committal proceedings which only serve to
delay this step, do not advance the cause of
justice. The primary object of protecting the
innocent accused from the ordeal of a
sessions trial has not been achieved in
practice; and the other main object of
apprising the accused in sufficient detail of
the case he has to meet at the trial could be
achieved by other methods without going
through a very partial and ineffective trial
rehearsal
before
a
Magistrate.
We
recommend that committal proceedings
should be abolished."

We have reproduced the same to
accentuate the change that has taken place
in the existing Code. True it is, the
committal proceedings have not been
6 All. Sumit Vs. State of U.P. & Anr.
75
totally abolished but in the present
incarnation,
it
has
really
been
metamorphosed and the role of the
Magistrate has been absolutely constricted.

58. In our considered opinion,
because of the restricted role assigned to
the Magistrate at the stage of commitment
under the new Code, the non-compliance
with the same and raising of any objection
in that regard after conviction attracts the
applicability of the principle of "failure of
justice" and the convict appellant becomes
obliged in law to satisfy the appellate court
that he has been prejudiced and deprived of
a fair trial or there has been miscarriage of
justice. The concept of fair trial and the
conception of miscarriage of justice are not
in the realm of abstraction. They do not
operate in a vacuum. They are to be
concretely established on the bedrock of
facts and not to be deduced from
procedural lapse or an interdict like
commitment as enshrined under Section
193 of the Code for taking cognizance
under the Act. It should be a manifestation
of reflectible and visible reality but not a
routine
matter
which
has
roots
in
appearance sans any reality. Tested on the
aforesaid premised reasons, it is well-nigh
impossible to conceive of any failure of
justice or causation of prejudice or
miscarriage of justice on such noncompliance. It would be totally inapposite
and inappropriate to hold that such noncompliance vitiates the trial.

59. At this juncture, we would like
to refer to two other concepts, namely,
speedy trial and treatment of a victim in
criminal jurisprudence based on the
constitutional paradigm and principle. The
entitlement of the accused to speedy trial
has been repeatedly emphasised by this
Court. It has been recognized as an
inherent and implicit aspect in the spectrum
of Article 21 of the Constitution. The whole
purpose of speedy trial is intended to avoid
oppression and prevent delay. It is a
sacrosanct obligation of all concerned with
the justice dispensation system to see that
the administration of criminal justice
becomes effective, vibrant and meaningful.
The concept of speedy trial cannot be
allowed to remain a mere formality [see
Hussainara Khatoon (1) v. State of Bihar
[(1980) 1 SCC 81 : 1980 SCC (Cri) 23]
,Moti Lal Saraf v. State of J&K [(2006) 10
SCC 560 : (2007) 1 SCC (Cri) 180 : AIR
2007 SC 56] and Raj Deo Sharma v. State
of Bihar [(1998) 7 SCC 507 : 1998 SCC
(Cri) 1692 : AIR 1998 SC 3281] ].

60. While delineating on the
facets of speedy trial, it cannot be regarded
as an exclusive right of the accused. The
right of a victim has been given recognition
in Mangal Singh v. Kishan Singh[(2009) 17
SCC 303 : (2011) 1 SCC (Cri) 1019 : AIR
2009 SC 1535] wherein it has been
observed thus: (SCC p. 307, para 14)

"14. ... Any inordinate delay in
conclusion of a criminal trial undoubtedly
has a highly deleterious effect on the
society generally, and particularly on the
two sides of the case. But it will be a grave
mistake to assume that delay in trial does
not cause acute suffering and anguish to
the victim of the offence. In many cases the
victim may suffer even more than the
accused. There is, therefore, no reason to
give all the benefits on account of the delay
in trial to the accused and to completely
deny all justice to the victim of the offence."

 (emphasis supplied)

61. It is worth noting that the
Constitution Bench in Iqbal Singh Marwah
v. Meenakshi Marwah[(2005) 4 SCC 370 :
2005 SCC (Cri) 1101 : AIR 2005 SC 2119]
(SCC p. 387, para 24) though in a different
context, had also observed that delay in the
prosecution of a guilty person comes to his
76 INDIAN LAW REPORTS ALLAHABAD SERIES
advantage as witnesses become reluctant to
give evidence and the evidence gets lost.

62. We have referred to the
aforesaid authorities to illumine and
elucidate that the delay in conclusion of
trial has a direct nexus with the collective
cry of the society and the anguish and
agony of an accused (quaere a victim).
Decidedly, there has to be a fair trial and
no miscarriage of justice and under no
circumstances, prejudice should be caused
to the accused but, a pregnant one, every
procedural lapse or every interdict that has
been acceded to and not objected at the
appropriate stage would not get the trial
dented or make it unfair. Treating it to be
unfair would amount to an undesirable
state of pink of perfection in procedure. An
absolute apple-pie order in carrying out the
adjective law, would only be sound and fury
signifying nothing.

63. In the case at hand, as is
perceivable, no objection was raised at the
time of framing of charge or any other
relevant time but only propounded after
conviction. Under these circumstances, the
right of the collective as well as the right of
the victim springs to the forefront and then
it becomes obligatory on the part of the
accused to satisfy the court that there has
been failure of justice or prejudice has been
caused to him. Unless the same is
established, setting aside of conviction as a
natural corollary or direction for retrial as
the third step of the syllogism solely on the
said foundation would be an anathema to
justice.

64. Be it noted, one cannot afford
to treat the victim as an alien or a total
stranger to the criminal trial. The criminal
jurisprudence, with the passage of time,
has laid emphasis on victimology which
fundamentally is a perception of a trial
from the viewpoint of the criminal as well
as the victim. Both are viewed in the social
context. The view of the victim is given due
regard and respect in certain countries. In
respect of certain offences in our existing
criminal jurisprudence, the testimony of the
victim is given paramount importance.
Sometimes it is perceived that it is the duty
of the court to see that the victim's right is
protected. A direction for retrial is to put
the clock back and it would be a travesty of
justice to so direct if the trial really has not
been unfair and there has been no
miscarriage of justice or failure of justice.

65. We may state without any fear
of contradiction that if the failure of justice
is not bestowed its due signification in a
case of the present nature, every procedural
lapse or interdict would be given a
privileged place on the pulpit. It would,
with unnecessary interpretative dynamism,
have the effect potentiality to cause a dent
in the criminal justice delivery system and
eventually, justice would become illusory
like a mirage. It is to be borne in mind that
the legislature deliberately obliterated
certain rights conferred on the accused at
the committal stage under the new Code.
The intendment of the legislature in the
plainest sense is that every stage is not to
be treated as vital and it is to be interpreted
to subserve the substantive objects of the
criminal trial.

66. Judged from these spectrums
and analysed on the aforesaid premises, we
come to the irresistible conclusion that the
objection relating to non-compliance with
Section 193 of the Code, which eventually
has resulted in directly entertaining and
taking cognizance by the Special Judge
under the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989, does not vitiate the trial and on
the said ground alone, the conviction
cannot be set aside or there cannot be a
direction of retrial and, therefore, the
decision rendered in Bhooraji [(2001) 7
6 All. Sumit Vs. State of U.P. & Anr.
77
SCC 679 : 2001 SCC (Cri) 1373 : AIR
2001 SC 3372] lays down the correct law
inasmuch as there is no failure of justice or
no prejudice is caused to the accused.

67. The decisions rendered in
Moly [(2004) 4 SCC 584 : 2004 SCC (Cri)
1348
:
AIR
2004
SC
1890]
and
Vidyadharan [(2004) 1 SCC 215 : 2004
SCC (Cri) 260] have not noted the decision
in Bhooraji [(2001) 7 SCC 679 : 2001 SCC
(Cri) 1373 : AIR 2001 SC 3372] , a binding
precedent, and hence they are per incuriam
and further, the law laid down therein,
whereby the conviction is set aside or the
matter is remanded after setting aside the
conviction for fresh trial, does not expound
the correct proposition of law and,
accordingly, they are hereby, to that extent,
overruled.

68. The appeals be placed before
the appropriate Bench for hearing on
merits."

11. It is apparent from the above
judgment that the principle of failure of
justice has been stuck in the above
mentioned case by Hon'ble Supreme Court
and it has also held that the procedure of
commitment of case in amended Cr.P.C.
has been made of very superficial nature as
the Magistrate committing the case, does
not enjoy any power to make deeper
analysis of the evidence which he was
supposed to collect under unamended
Cr.P.C. and now he has simply to commit
the case irrespective of what were the facts
and evidence on record. Therefore, no
deeper scrutiny is required to be made of
the evidence gathered by the Investigating
Officer under the provision of 193 Cr.P.C.
nor does he have any discretion to commit
the case to the Court of Sessions as he is
bound to commit the case. Therefore, it is
held that merely because in this case
commitment was not made, all the
proceedings would not vitiate the trial on
that ground alone as it was necessary to
show that by non-compliance, failure of
justice had occurred or any deep prejudice
was caused to the accused, though I am of
the view that this judgment would not
apply in the present case because this
judgment belongs to a period prior to
amendment in section 14 of SC/ST Act
which provides for the power to the Special
Court to directly take cognizance. But even
if, what has been mentioned in this ruling
as I have discussed above, i.e principle of
prejudice or failure of justice be taken into
consideration, in the light of the facts of
present case I find that the entire evidence
has already been collected in this case and
it is thereafter that the accused has resorted
to this objection that the case was not
committed to the Special Court, hence it
did not have power to try this case, I do not
see any prejudice to have been caused to
the accused nor do I see that failure of
justice would occur in this case because the
Special Court created under section 14 of
the SC/ST Act is also conferred with the
power of Sessions Judge. In the present
case, the offence under section 3(2) (V) of
the SC/ST Act is alleged to have been
committed along with offence under
section 302 IPC, therefore, it would result
in failure of justice if a separate Sessions
Court be asked to decide the offence under
section 302 IPC while the Special Court be
allowed to hold trial for offence under
section 3 (2) (V) of SC/ST Act. That would
seem to be anomalous situation.

12. In order to gather the objective of
the amendment in the SC/ST Act, it would
be pertinent to take into consideration the
Annual Report of the Government of India
under section 21 (4) of the SC/ST Act for
the year 2016, which speaks that ---
78 INDIAN LAW REPORTS ALLAHABAD SERIES

"1.1
THE
SCHEDULED
CASTES
AND
THE
SCHEDULED
TRIBES
(PREVENTION
OF
ATROCITIES) ACT, 1989 AND THE
SCHEDULED
CASTES
AND
THE
SCHEDULED TRIBES (PREVENTION
OF ATROCITIES) RULES, 1995.