# RATTIRAM & ORS v. STATE OF M. P. THROUGH INSPECTOR OF POLICE ' '

- **Citation:** [2012] 3 S.C.R. 496
- **Court:** Supreme Court of India
- **Decided:** 2012-02-17
- **Case number:** Criminal Appeal No. 223 of 2008
- **Bench:** Dalveer Bhandari, T.S. Thakur, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rattiram-ors-v-state-of-m-p-through-inspector-of-police-28282
- **Pages:** 44

## Headnote

CODE OF CRIMINAL PROCEDURE, 1973:
s. 193 - Effect and impact of not committing an accused
in terms of s. 193 in cases where charge-sheet is filed u/
s.3(1)(x) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and cognizance is directly
0 taken by the Special Judge under the Act - Held: Special
Court as constituted under 1989 Act is a Court of Session -
If cognizance is directly taken by the Special Court under the
Act and an accused without assailing the same at the
inception allows the trial to continue and invites a judgment
E of conviction, he would not be permitted in law to question the
same and seek quashment of the conviction on the ground
that the Special Court had no jurisdiction or authority to take
cognizance without the case being committed to it -1t is only
when non-compliance has occasioned in 'failure of justice' or
culminated in causation of prejudice to the accused that the
F trial is vitiated - The objection relating to non-compliance of
s. 193 which eventually has resulted in directly entertaining
and taking cognizance by the Special Judge under the Act,,
1989 does not vitiate the trial and on the said ground alone,
the conviction cannot be set aside or there cannot be a
. G direction of retrial - The decision rendered in **Bhooraji lays
down the correct law - T!Je decisions rendered in ***Moly and
****Vidyadharan did not note the decision in **Bhooraji, a
binding precedent, and hence they are per incuriam.
H
496
RATTIRAM & ORS. v. STATE OF M. P. THROUGH
497
INSPECTOR OF POLICE
s.209 - Committal proceedings - Procedure of, in old
A
Code of Criminal Procedure and new Code of 1973 - Held:
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 - But, in the committal
B
proceedings in praesenti, the Magistrate is only required to
see whether the offence is exclusively triable by the Court of
Session - Because of the restricted role assigned to the
Magistrate at the stage of commitment under the new Code,
the non-compliance of the same and raising of any objection c
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.
D
Criminal jurisprudence:
Fair trial - Denial of - Held: A 'fair trial' is the heart of
criminal jurisprudence - Denial of 'fair trial' is crucifixion of
human rights - It is ingrained in the concept of due process
E
of law - While emphasising the principle of 'fair trial' and the
practice of the same in the course of trial, it is obligatory on
the part of the Courts to see whether in an individual case or
category of cases, because of non-compliance of a certain
provision, reversion of judgment of conviction is inevitable or
F
it is dependent on arriving at an indubitable conclusion that
substantial injustice has in fact occurred.
Procedural lapse and delay in conclusion of trial - Effect
of - Held: There has to be a fair trial and no miscarriag& of
justice and under no circumstances, prejudice should be
G
caused to the accused - 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 - The right of the
H
498
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A 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
B corollary or direction for retrial as the thir

## Text

_Characters 0–39,802 of 84,213. This is a partial read: ask again with offset=39802 for what follows._

A
8
c
[2012] 3 S.C.R. 496
RATTIRAM & ORS.
v.
STATE OF M. P. THROUGH INSPECTOR OF POLICE
' '
(Criminal Appeal No. 223 of 2008)
FEBRUARY 17, 2012
[DALVEER BHANDARI, T.S. THAKUR AND
DIPAK MISRA, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
s. 193 - Effect and impact of not committing an accused
in terms of s. 193 in cases where charge-sheet is filed u/
s.3(1)(x) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and cognizance is directly
0 taken by the Special Judge under the Act - Held: Special
Court as constituted under 1989 Act is a Court of Session -
If cognizance is directly taken by the Special Court under the
Act and an accused without assailing the same at the
inception allows the trial to continue and invites a judgment
E of conviction, he would not be permitted in law to question the
same and seek quashment of the conviction on the ground
that the Special Court had no jurisdiction or authority to take
cognizance without the case being committed to it -1t is only
when non-compliance has occasioned in 'failure of justice' or
culminated in causation of prejudice to the accused that the
F trial is vitiated - The objection relating to non-compliance of
s. 193 which eventually has resulted in directly entertaining
and taking cognizance by the Special Judge under the Act,,
1989 does not vitiate the trial and on the said ground alone,
the conviction cannot be set aside or there cannot be a
. G direction of retrial - The decision rendered in **Bhooraji lays
down the correct law - T!Je decisions rendered in ***Moly and
****Vidyadharan did not note the decision in **Bhooraji, a
binding precedent, and hence they are per incuriam.
H
496
RATTIRAM & ORS. v. STATE OF M. P. THROUGH
497
INSPECTOR OF POLICE
s.209 - Committal proceedings - Procedure of, in old
A
Code of Criminal Procedure and new Code of 1973 - Held:
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 - But, in the committal
B
proceedings in praesenti, the Magistrate is only required to
see whether the offence is exclusively triable by the Court of
Session - Because of the restricted role assigned to the
Magistrate at the stage of commitment under the new Code,
the non-compliance of the same and raising of any objection c
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.
D
Criminal jurisprudence:
Fair trial - Denial of - Held: A 'fair trial' is the heart of
criminal jurisprudence - Denial of 'fair trial' is crucifixion of
human rights - It is ingrained in the concept of due process
E
of law - While emphasising the principle of 'fair trial' and the
practice of the same in the course of trial, it is obligatory on
the part of the Courts to see whether in an individual case or
category of cases, because of non-compliance of a certain
provision, reversion of judgment of conviction is inevitable or
F
it is dependent on arriving at an indubitable conclusion that
substantial injustice has in fact occurred.
Procedural lapse and delay in conclusion of trial - Effect
of - Held: There has to be a fair trial and no miscarriag& of
justice and under no circumstances, prejudice should be
G
caused to the accused - 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 - The right of the
H
498
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A 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
B corollary or direction for retrial as the third step of the
syllogism solely on the said foundation would be an anathema
to justice - One cannot also 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
c on victimology which fundamentally is a perception of a trial
from the view point of the criminal as well as the victim - 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 arid there has been no miscarriage of justice or failure
0 of justice.
ADMINISTRATION OF JUSTICE: Speedy trial - Held:
The entitlement of the accused to speedy trial has been
recognised as an inherent and implicit aspect in the spectrum
of Article 21 of the Constitution - The whole purpose of speedy
E 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
F formality - However, speedy trial cannot be regarded as an
exclusive right of the accused - 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
G of the offence.
The questions that arose for consideration in the
instant appeals were whether the Special Court as
constituted under the Scheduled Castes and the
H Scheduled Tribes (Prevention of Atrocities) Act, 1989 is
RATTIRAM & ORS. v. STATE OF M. P. THROUGH
499
INSPECTOR OF POLICE
a Court of Session; and whether there is any special A
provision in the Act enabling the said court to take
cognizance; and whether non-compliance of the interdict
as envisaged and engrafted under Section 193 of Code
of Criminal Procedure, 1973 nullifies the final verdict after
the trial and warrants its total extinction resulting in retrial, B
or it is incumbent on the part of the convict to exposit and
satisfy that such guillotining of the interdict has
occasioned in 'failure of justice' or culminated in
causation of prejudice to him for the purpose of declaring
that the trial was vitiated. .
c
Answering the questions the Court
HELD: 1. Plain reading of Section 193 of Code of
Criminal Procedure, 1973 would show that no Court of
Session can take cognizance of any offence as a court D
of original jurisdiction except as otherwise expressly
provided by the Code or any other law for the time being
in force. In *Gangula Ashok, a two.Judge Bench of this
Court, after taking note of Section 6 of 1973 Code and
Section 14 of the Scheduled Castes and the Scheduled E
Tribes (Prevention of Atrocities) Act, 1989 came to the
conclusion that the intendment of the legislature is to treat
the Special Court under the Act to be a Court of Session
even after specifying it as a Special Court and it would
continue to be essentially a Court of Session and not get F
denuded of its character or power as a Court of Session.
However, the demonstrable facet of the discord is that if
cognizance is directly taken by the Special Judge under
the Act and an accused without assailing the same at the
inception allows the trial to continu~ and invites a G
judgment of conviction, would he be permitted in law to
question the same and seek quashment of the conviction
on the bedrock that the trial Judge had no jurisdiction or
authority to take cognizance without the case being
committed to it and thereby violated the mandate H
500
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A enshrined under Section 193 of the Code. [Paras 5, 7, 10)
[511-D, G, H; 513-D)
B
M, A. Kuttappan v. E Krishnan Nayanar and another
(2004) 4 SCC 231 : 2004 (2) SCR 668 - Distinguished.
*Gangula Ashok and Another v. State of Andhra Pradesh
AIR 2000 SC 740 : 2000 (1) SCR 468 - referred to.
2~ The decision in **Bhooraji was a binding precedent,
and when in ignorance of it subsequent decisions are
c rendered, the concept of per incuriam would come into
play. In **Bhooraji, the Bench referred to Section 462 to
465 of 1973 Code. Section 465 of 1973 Code laid
emphasis on a 'court of competent jurisdiction' and 'error,
omission or irregularity in the complaint, summons,
0 warrant, proclamation, order, judgment or other
proceedings before or during trial' and 'a failure of justice
has in fact been occasioned thereby'. The legislative
intendment inhered in the language employed is
graphically clear that lancination or invalidation of a
E verdict after trial is not to be taken recourse to solely
because there is an error, omission or irregularity in the
proceeding. The term 'a failure of justice' has been treated
as the sine qua non for setting aside the conviction.
[Paras 24, 30, 31) [520-C-D; 522-G; 523-D-F]
'
F
**State of M. P. v. Bhooraji & Ors. AIR 2001 SC 3372 :
2001 (2) Suppl. SCR 128 - relied on.
3. A 'fair trial' is the heart of criminal jurisprudence
and, in a way, an important facet of a democratic polity
G that is governed by Rule of Law. Denial of 'fair trial' is
crucifixion of human rights. It is ingrained in the concept
of due process of law. While emphasising the principle
of 'fair trial' and the practice of the same in the course of
trial, it is obligatory on the part of the Courts to see
H whether in an individual case or category of cases,
RATTIRAM & ORS. v. STATE OF M. P. THROUGH
501
INSPECTOR OF POLICE
because of non-compliance of a certain provision,
A
reversion of judgment of conviction is inevitable or it is
dependent on arriving at an indubitable conclusion that
substantial injustice has in fact occurred. The seminal
issue is whether protection given to the accused under
the law has been jeopardised as a consequence of which
B
there has been failure of justice or causation of any
prejudice. Once prejudice is caused to the accused
during trial, it occasions in 'failure of justice'. [Paras 3536) [525-C-E; 526-B]
4. Section 209 of 1973 Code deals with the
C
commitment of case to Court of Session when an offence
is triable exclusively by it. Prior to coming into force of
1973 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
D
Principal Act was substituted by Sections 207 and 207 A.
Perusal of section 207 and 207 A of the old Code would
show 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,
E
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. Apart from that the accused
F
was at liberty to cross-examine the witnesses and 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
G
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. Thus, the
accused enjoyed a substantial right prior to commitment
of the case. It was indeed a vital stage. But, in the
H
502
SUPREME COURT REPORTS
[2012) 3 S.C.R.
A committal proceedings in praesenti, the magistrate is only
required to see whether the offence is exclusively triable
by the Court of Session. Section 207 of the 1973 Code
lays down for furnishing of certain documents to the
accused free of cost. Section 209(a) clearly stipulates that
B providing of the documents as per Section 207 or Section
208 is the only condition precedent for commitment. 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
c jurisdiction conferred on the magistrate is only to verify
the nature of. the offence. Thereafter, a mandate is cast
that he "shall commit". 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
0 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. [Paras 41-43] [529-C; 530-A-B; 534-8-H; 535A-B]
E
Mrs. Kalyani Baskar v. Mrs. M. S. Sampoornam (2007)
2 SCC 258; Sidhartha Vashisht v. State (NCT of Delhi) (2010)
6 SCC 1 : 2010 (4) SCR 103; Gurbachan Singh v. State of
Punjab AIR 1957 SC 623; Shamnsaheb M. Multtani v. State
of Karnataka (2001) 2 SCC 577: 2001 (1) SCR 514; State
F by Police Inspector v. T. Venkatesh Murthy AIR 2004 SC
5117: 2004 (4) Suppl. SCR 279; Central Bureau of
Investigation v. V. K. Sehgal (1999) 8 SCC 501: 1999 (3)
Suppl. SCR 570; M. C. Sulkunte v. State of Mysore AIR 1971
SC 508 - relied on
G
Town Investments Ltd. vs. Department of the
Environment (1977) 1 All ER 813 - referred to
5. Because of the restricted role assigned to the
Magistrate at the stage of commitment under the new
H Code, the non-compliance of the same and raising of any
RATTIRAM & ORS. v. STATE OF M. P. THROUGH
503
INSPECTOR OF POLICE
objection in that regard after conviction attracts the
A
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
8
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 1973
C
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
0
or causation of prejudice or miscarriage of justice on
such non-compliance. It would be totally inapposite and
inappropriate to hold that such non-compliance vitiates
the trial. [para 45] [536-B-F]
6. The entitlement of the accused to speedy trial has
been recognised 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.
However, speedy trial cannot be regarded as an exclusive
right of the accused. In many cases the victim may suffer G
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
E
F
the victim of the offence. [Paras 46-47] [536-G-H; 537-AE]
H
504
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
Hussainara Khatoon and Ors. v. Home Secretary, State
of Bihar (1980) 1 SCC 81: 1979 (3) SCR 169; Moti Lal Saraf
v. State of Jammu & Kashmir AIR 2007 SC 56: 2006 (6)
Suppl. SCR 903; Raj Deo Sharma v. State of Bihar AIR 1998
SC 3281: 1998 (2) Suppl. SCR 130; Mangat Singh and Anr.
B v. Kishan Singh and ors. AIR 2009 SC 1535: 2008 (16) SCR
505; Iqbal Singh Marwah and another v. Meenakshi Marwah
and another AIR 2005 SC 2119: 2005 (2) SCR 708 - relied
on.
7. The delay in conclusion of trial has a direct nexus
C with the collective cry of the society and the anguish and
agony of an accused. Decidedly, there has to be a fair trial
and no miscarriage of justice and under no
circumstances, prejudice should be caused to the
accused. Every procedural lapse or every interdict that
D 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. In the case at
hand, no objection was raised at the time of framing of
E 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
F 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. One cannot
G also afford to treat t~e 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 view point
of the criminal as well as the victim. Both are viewed in
H the social context. The view of the victim is given due
RATTIRAM & ORS. v. STATE OF M. P. THROUGH
505
INSPECTOR OF POLICE
regard and respect in certain countries. In respect of A
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
B
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. [Paras 49, 50] [538-A-H]
8. If the failure of justice is not bestowed its due
C
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.
D
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
E
subserve the substantive objects of the criminal trial.
[Para 51] [539-A-C]
9. The objection relating to non-compliance of
Section 193 of the 1973 Code, which eventually has
F
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
G
direction of retrial and, therefore, the decision rendered
in **Bhooraji lays down the correct law inasmuch as there
is no failure of justice or no prejudice is caused to the
accused. The decisions rendered in ***Mo/y and
****Vidyadharan have not noted the decision in **Bhooraji, . H
a binding precedent, and hence they are per incuriam and
506
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A further, the law laid down therein, whereby the conviction
is set aside or 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
B
that extent, overruled. [Para 52) [539-D-G]
**State of M. P. v. Bhooraji & Ors. AIR 2001 SC 3372 :
2001 (2) Suppl. SCR 128 - relied on.
***Moly and Another v. State of Kera/a AIR 2004 SC
1890 : 2004 (3) SCR 346; ****Vidyadharan v. State of Kera/a
C (2004) 1 SCC 215 : 2003 (5) Suppl. SCR 524 - per
incuriam
Jabalpur Bus Operators Association and Anotherv. State
of Madhya Pradesh and Another 2003 (1) MPJR 158; A. R.
0 Antu/ay v. Ramdas Sriniwas Nayak and another (1984) 2
SCC 500 : 1984 (2) SCR 914; Directorate of Enforcement
v. Deepak Mahajan and another (1994) 3 SCC 440 : 1994
· (1) SCR 445; Gangu/a Ashok v. State of A.P. (2000) 2 SCC
504 : 2000 SCC (Cri) 488 : 2000 (1) SCR 468; Union of
E India and Another v. Raghubir Singh (dead) by L. Rs. And
Others (1989) 2 SCC 754 : 1989 (3) SCR 316; Indian Oil
Corporation Ltd., v. Municipal Corporation and Another AIR
1995 SC 1480 : 1995 (3) SCR 246; Municipal Corporation,
Indore v. Smt. Ratna Prabha & Ors. AIR 1977 SC 308: 1977
F (1) SCR 1017; Dewan Dau/at Rai Kapoor v. New Delhi
Municipal Committee AIR 1980 SC 541 : 1980 (2) SCR
607; Dr. Balbir Singh v. Municipal Corporation Delhi AIR 1985
SC 339 : 1985 (2) SCR 439; Chandra Prakash and Others
v. State of U.P. and Another (2003) SCC (L & S) 827; Punjab
Land Development & Reclamation Corporation Ltd. v.
G Presiding Officer, Labour Court, Chandigarh & Ors. (1990) 3
sec 682 : 1990 (3) SCR 111; State of u. P. And Another
v. Synthetics and Chemicals Ltd. And Another (1991) 4 SCC
139; Siddharam Sat/ingappa Mhetre v. State of Maharashtra
and Ors. AIR 2011 sc 312: ( 2011) 1 sec 694: 2010 (15)
H
SCR 201 7 referred to.
RATTIRAM & ORS. v. STATE OF M. P. THROUGH
507
INSPECTOR OF POLICE
Case Law Reference:
A
2004 (3) SCR 346
per incuriam Para 1,3,8,
:;.:
17,20,28,31
2003 (5) Suppl. SCR 524
per incuriam Para 1,3,8, 17,
18,19,28
B
2001 (2) Suppl. SCR 128
relied on
Para 1,3,8, 13,
16, 17 ,20,23,
30,36,38
2000 (1) SCR 468
referred to
Para 3,7,11,
c
13,14,18
2003 (1) MPJR 158
referred to
Para 3
1984 (2) SCR 914
referred to
Para 7,24
1994 (1) SCR 445
referred to
Para 7
D
2004 (2) SCR668
Distinguished Para 8, 18
1989 (3) SCR 316
referred to
Para 21,23
1995 (3) SCR 246
referred to
Para 22
E
1977 (1) SCR 1017
referred to
Para 22
1980 (2) SCR 607
referred to
Para 22
1985 (2) SCR 439
referred to
Para 22,23
F
(2003) sec (L & S) 827
referred to
Para 23
1990 (3) SCR 111
referred to
Para 25
(1991) 4 sec 139
referred to
Para 26
G
2010 (15) SCR 201
referred to
Para 27
c2001) 2 sec 258
relied on
Para 33
2010 (4) SCR 103
relied on
Para 34
H
A
B
c
D
E
F
G
H
508
SUPREME COURT REPORTS
[2012] 3 S.C.R.
AIR 1957 SC 623
relied on
Para 35
2001 (1) SCR 514
relied on
Para 36
(1977) 1 All ER 813
referred to
Para 36
2004 (4) Suppl. SCR 279
relied on
Para 37
2001 (2) Suppl. SCR 128
referred to
Para 38
1999 (3) Suppl. SCR 570
relied on
Para 39
AIR 1971 SC 508
relied on
Para 40
1979 (3) SCR 169
relied on
Para 46
2006 (6) Suppl. SCR 903
relied on
Para 46
1998 (2) Suppl. SCR 130
relied on
Para 46
2008 (16) SCR 505
relied on
Para 47
2005 (2) SCR 708
relied on
Para 48
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 223 of 2008.
From the Judgment & Order dated 12.03.2007 of the High
Court of Judicature, Madhy Pradesh at Jabalpur in Criminal
Appeal No. 1568 of 1996.
WITH
Crl. A. No. 458 of 2008.
Fakhruddin, Bharat Bhushan, Raj Kishore Choudhary,
Samant Ahuja, Abdul Karim Ansari, Gulshan Johari, Anis
Ahmed Khan, Shoaib Ahmed Khan, M.Z. Chaudhary, Aftab Ali
Khan for the Appellants.
Vibha Datta Makhija, Rohan Chhabra for the Respondent.
The Judgment of the Court was delivered by
RATTIRAM & ORS. v. STATE OF M. P. THROUGH
509
INSPECTOR OF POLICE
DIPAK MISRA, J. 1. Perceiving divergent and
A
contradictory views as regards the effect and impact of not
committing an accused in terms of Section 193 of the Code of
Criminal Procedure (for short 'the Code') in cases where
charge-sheet is filed under Section 3(1)(x) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
B
1989 (for brevity 'the Act') and cognizance is directly taken by
the Special Judge under the Act, a two-Judge Bench thought
it apposite to refer the matter to a larger Bench and on the basis
of the said reference, the matter has been placed before us.
At this juncture, it is requisite to clarify that the real conflict or c
discord is manifest in Mo/y and Another v. State of Kerala 1
and Vidyadharan v. State of Kerala 2 on one hand wherein it
has been held that the conviction by the Special Court is not
sustainable if it has suo motu entertained and taken
cognizance of the complaint directly without the case being
0
committed to it and, therefore, there should be retrial or total
setting aside of the conviction, as the case may be, and the
other in State of M. P. v. Bhooraji & Ors. 3 wherein, taking aid
of Section 465 (1) of the Code, it has been opined that when
a trial has been conducted by the court of competent jurisdiction
E
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 proceeding and
cognizance was taken by the Special Court inasmuch as the
same does not give rise to failure of justice.
2. The necessitous facts required to be adumbrated for the
purpose of answering the present reference are that the
appellants were charge sheeted under Section 3 (1) (x) of the
Act but eventually, charges were framed under Sections 147,
F
148 and 302 read with Section 149 of the Indian Penal Code
G
(for short, 'the IPC'). The learned Trial Judge vide judgment
dated 31.08.1996 in Sessions Trial No. 97 of 1995 convicted
1.
AIR 2004 SC 1890.
2.
(2004) 1 sec 215.
3.
AIR 2001 SC 3372.
H
510
SUPREME COURT REPORTS
[2012) 3 S.C.R.
A all the accused persons barring Mohan for the offences under
Section 302 read with Section 149 IPC and sentenced them
to imprisonment for life with a fine of Rs. 1000/-, in default of
payment of fine, to suffer further rigorous imprisonment for three
months and sentenced to one month rigorous imprisonment
B under Section 147 of the IPC. The accused Mohan was
convicted for the offence under Sections 148 and 302 of the
IPC and was sentenced to undergo one month rigorous
imprisonmemt on the first score and to further life imprisonment
and pay a fine of Rupees 1000/-, in default of payment of fine,
c to suffer further R.I. for three months on the second count.
3. Being dissatisfied with the judgment of conviction and
the order of sentence, the appellants along with others preferred
Criminal Appeal No. 1568 of 1996 before the High Court of
Judicature of Madhya Pradesh at Jabalpur. Apart from raising
D 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 Session as provided under
Section 193 of the Code. Heavy reliance was placed on
Gangula Ashok and Another v. State of Andhra Pradesh4 and
E Mo/y and Another (supra) and Vidyadharan (supra) but the
Division Bench placed reliance on Bhooraji (supra) wherein
Gangu/a Ashok (supra) was distinguished keeping in view the
stage of the case and regard being had to the provision
contained in Section 465 of the Code and treated the same to
F be a binding precedent in view of the special Bench decision
of the High Court of Madhya Pradesh rendered in Jabalpur
Bus Operators Association and Another v. State of Madhya
Pradesh and Anothe~ and repelled the contention accordingly.
Thereafter, as the impugned judgment would reveal, the Bench
G proceeded to deal with the matter on merits and eventually
sustained the conviction and affirmed the sentence as has been
indicated hereinbefore.
4.
AIR 2000 SC 740.
H 5.
2003 (1) MPJR 158.
RATIIRAM & ORS. v. STATE OF M. P. THROUGH
511
INSPECTOR OF POLICE [DIPAK MISRA, J.]
4. We have heard Mr. Fakhrudin, learned senior counsel
A
and Mr. Anis Ahmed Khan for the appellants in both the
appeals and Ms. Vibha Datta Makhija, learned counsel for the
respondent-State.
5. At the very outset, we shall advert to the jurisdiction or 8
authority of the Special Court to take cognizance of the offence
under the Act regardless of the interdict stipulated in Section
193 of the Code. Section 193 of the Code reads as follows:
"193. Cognizance of offence by Court of SessionExcept as otherwise expressly provided by this Code or
C
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 b~en committed
to it by a Magistrate under this code."
On a plain reading of the aforesaid provision, it is clear
as noon day that no Court of Session can take cognizance of
any offence as a court of original jurisdiction except as
otherwise expressly provided by the Code or any other law for
the time being in force.
6. The questions that emanate, as a natural corollary, for
consideration are whether the Special Court as constituted
under the Act is a Court of Session; and whether there is any
special provision in the Act enabling the said court to take
cognizance.
7. In Gangula Ashok (supra), a two-Judge Bench of this
Court, after taking note of Section 6 of the Code and Section
D
E
F
14 of the Act, came to the conclusion that the intendment of the
legislature is to treat the Special Court under the Act to be a
G
Court of Session even after specifying it as a Special Court
and it would continue to be essentially a Court of Session and
not get denuded of its character or power as a Court of
Session. The Court scanned the anatomy of the Act and
H
512
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A analysed the postulates contained in Sections 4 and 5 of the
Code and thereafter, referring to the Constitution Bench
decisions :in A. R. Antulay v. Ramdas Sriniwas Nayak and
another and in Directorate of Enforcement v. Deepak
Mahajan and another7, expressed thus:
B
c
D
E
F
"16. Hence we have no doubt that a Special Court under
this Act is essentially a Court of Session and it can take
cognizance of the offence when the case is committed to
it by the Magistrate in accordance with the provisions of
the Code. In other words, a complaint or a charge-sheet
cannot straight away be laid down before the Special Court
"•
under the Act.
8. In Vidyadharan (supra), the Court delved into the said
issue and eventually proceeded to state as follows:
"23. Hence, we have no doubt that a Special Court under
this Act is essentially a Court of Session and it can take
cognizance of the offence when the case is committed to
it by the Magistrate in accordance with the provisions of ·
the Code. In other words, a complaint or a charge-sheet
cannot straight away be laid down before the Special Court
under the Act. We are reiterating the view taken by this
Court in Gangula Ashok v. State of A.P. [(2000) 2 SCC
504 : 2000 SCC (Cri) 488] in the above terms with which
we are in respectful agreement. The Sessions Court in the
case at hand, undisputedly, has acted as one of original
jurisd!ction, and the requirements of Section 193 of the
Code were not met."
The aforesaid view was reiterated in Maly (supra). In M.
G A. Kuttappan v. E Krishnan Nayanar and another8, another
two-Judge .Bench ruled that the Special Judge under the Act
cannot entertain a complaint filed before it and issue process
a.
(1984) 2 sec soo.
7.
(1994) 3 sec 440.
H 8.
(2004) 4 sec 231.
RATTIRAM & ORS. v. STATE OF M. P. THROUGH
513
INSPECTOR OF POLICE [DIPAK MISRA, J.]
after taking cognizance without the case being committed to it A
for trial by the competent Magistrate. It is apt to mention here
that similar view has been spelt out in Bhooraji (supra).
9. After careful perusal of the aforesaid decisions, we have
no scintilla of doubt that the view expressed which has a base
B
of commonality is absolutely correct and there is no necessity
to dwell upon the same more so when there is no cavil or
conflict in this regard and there has been no reference on the
said score. Additionally, no doubt has been expressed relating
to the exposition of the said view, and irrefragably correctly so.
C
10. The demonstrable facet of the discord is that if
cognizance is directly taken by the Special Judge under the Act
and an accused without assailing the same at the inception
allows the trial to continue and invites a judgment of conviction,
would he be permitted in law to question the same and seek D
quashment of the conviction on the bedrock that the trial Judge
had no jurisdiction or authority to take cognizance without the
case being committed to it and thereby violated the mandate
enshrined under Section 193 of the Code.
11. To make the maze clear, it is profitable to note that in
E
Gangu/a Ashok (supra), the appellants had called in question
the legal substantiality of the order passed by the Single Judge
of the High Court of Andhra Pradesh who, after expressing the
view that the Special Judge had no jurisdiction to take
cognizance of the offence under the Act without the case being
F
committed to it, set aside the proceedings of the Special Court
and further directed the charge-sheet and the connected papers
to be returned to the police officer concerned who, in turn, was
required to present the same before the Judicial Magistrate of
1st Class for the purpose of committal to the Special Court. That G
apart, the Single Judge further directed that on such committal,
the Special Court shall frame appropriate charges in the light
of the observation made in the order.
12. The two-judge Bench accepted the view as far as it
H
514
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A pertained to setting aside of the impugned order but did not
approve the direction issued for the steps to be taken by the
Special Judge for framing of charges as it was of the view that
no direction could have been issued to the Special Court as it
was open to the appellants therein to raise all their contentions
B at the stage of framing of charge if they wished to advance a
plea for discharge. Thus, it is evident that the accusedappellants had challenged the order of framing of charge and
sought quashing of the same before the High Court. They did
not wait for the trial to commence and the judgment of conviction
c to visit them.
13. After the dictum in Gangula Ashok (supra), the High
Court of Madhya Pradesh was dealing with an appeal, Bhooraji
(supra), wherein the appellants were convicted under Sections
148, 323, 302/149 IPC and sentenced to various punishments
D including imprisonment for life. It is worth noting that they were
tried by the Special Judge under the Act as charge-sheet was
filed under Section 3 (2) of the Act along with other offences of
the IPC. When the matter came up before the Division Bench
of the High Court, the learned Judges commenced the
E judgment with the prelude that the case had sluggished for more
than nine years and the end was not in sight as direction for
retrial seemed inevitable because of the decision rendered by
this Court in Gangula Ashok (supra).
F
14. Be it noted, cognizance was taken directly by the
Special Judge in the said case also. The anguish and the
helplessness expressed by the High Court was taken note of
when the State of Madhya Pradesh approached this Court. This
Court laid emphasis on the fact that it was a case where the
G accused neither raised any objection when they were heard at
the time of framing of the charge nor did they raise such a plea
at any stage either before or after the evidence was recorded
by the trial Court but, a significant one, proponed such a
contention only after the conviction was recorded and that too
H after the decision in Gangu/a Ashok (supra) was rendered.
RATIIRAM & ORS. v. STATE OF M. P. THROUGH
515
INSPECTOR OF POLICE [DIPAK MISRA, J.]
15. As is perceptible, the Bench posed the question
A·
whether the High Court necessarily should have quashed the
trial proceedings to be repeated only on account of the
declaration of the legal position made by this Court concerning
the procedural aspect about the cases involving the offences
under the Act. The Bench referred to the provisions contained
B
in Sections 462 and 465 of the Code and adverted to the
concept of "a failure of justice" and held thus:
"15. A reading of the section makes it clear that the error,
omission or irregularity in the proceedings held before or
C
during the trial or in any enquiry were reckoned by the
legislature as possible occurrences in criminal courts. Yet
the legislature disfavoured axing down the proceedings or
to direct repetition of the whole proceedings afresh. Hence,
the legislature imposed a prohibition that unless such error,
omission or irregularity has occasionea "a failure of justice"
D
the superior court shall not quash the proceedings merely
on the ground of such error, omission or irregularity.
xxx xxx xxx xxx xxx
E
17. It is an uphill task for the accused in this case to show
that failure of justice had in fact occasioned merely
because the specified Sessions Court took cognizance of
the offences without the case being committed to it. The
normal and correct procedure, of course, is that the case
should have been committed to the Special Court because
that court being essentially a Court of Session can take
cognizance of any offence only then. But if a specified
Sessions Court, on the basis of the legal position then felt
F
to be correct on account of a decision adopted by the High
Court, had chosen to take cognizance without a committal
G
order, what is the disadvantage of the accused in following
the said course?
18. It is apposite to remember that during the period prior
to the Code of Criminal Procedure 1973, the committal
H
516
A
B
c
D
SUPREME COURT REPORTS
[2012] 3 S.C.R.
court, in police charge-sheeted cases, could examine
material witnesses, and such records also had to be sent
over to the Court of Session along with the committal order.
But after 1973, the committal court, in police chargesheeted cases, cannot examine any witness at all. The
Magistrate in such cases has only to conynit the cases
involving offences exclusively triable by the Court of
Session. Perhaps it would have been possible for an
accused to raise a contention before 1973 that skipping
committal proceedings had deprived him of the opportunity
to cross-examine witnesses in the committal court and that
had caused prejudice to his defence. But even that is not
available to an accused after 1973 in cases chargesheeted by the police. We repeatedly asked the learned
counsel for the accused to tell us what advantage the
accused would secure if the case is sent back to the
Magistrate's Court merely for the purpose of
retransmission of the records to the Sessions Court
through a committal order. We did not get any satisfactory
answer to the above query put to the counsel."
E
16. After so stating, the Court proceeded to deal with the
stance whether the Special Judge as a Court of Session would
remain incompetent to try the case until the case is committed
and, after critical ratiocination, declined to accept the said stand
and opined that the expression "a Court of competent
F jurisdiction" as envisaged in Section 465 of the Code is to
denote a validly constituted court conferred with the jurisdiction
to try the offence or offences and such a court could not get
denuded of its competence to try the case on account of any
procedural lapse and the competence would remain unaffected
G by the non-compliance with the procedural requirement. The
Bench further proceeded to lay down that the inability to take
cognizance of an offence without a committal order does not
mean that a duly constituted court becomes an incompetent
court for all purposes. It was also ruled that had an objection
H been raised at the earlier stage, the Special Judge could have
RATTIRAM & ORS. v. STATE OF M. P.