# SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI CHAUDHARI & ORS

- **Citation:** [2021] 10 S.C.R. 460
- **Court:** Supreme Court of India
- **Decided:** 2021-10-26
- **Case number:** Criminal Appeal No. 967 of 2021
- **Bench:** M. R. Shah, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shantaben-bhurabhai-bhuriya-v-anand-athabhai-chaudhari-ors-34653
- **Pages:** 24

## Headnote

Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Proviso to s.14 inserted by amendment -
Code of Criminal Procedure, 1973 - ss.207, 209, 193, 482 -
Offences under Atrocities Act - Second proviso to s.14 confers
powers upon the Special Court constituted u/s.14 also to directly
take cognizance of such offences - Cognizance taken by Magistrate
and thereafter case committed to the Special Court - Criminal
proceedings, if vitiated - High Court quashed and set aside the FIR
as well as order passed by the Magistrate taking cognizance and
issuing summons for offences under IPC as well as Atrocities Act -
On appeal by original informant/complainant, held: It cannot be
said that proviso to s.14 takes away jurisdiction of the Magistrate
to take cognizance and thereafter to commit the case to the Special
Court for trial for the offences under the Atrocities Act - Merely
because the Magistrate had taken cognizance of the offences and
thereafter the case was committed to the Special Court, it cannot be
said that entire criminal proceedings including FIR and chargesheet etc. are vitiated - Unless the rights which flow from s.14 of
the Atrocities Act are affected, it cannot be said that the accused is
prejudiced by the Magistrate taking cognizance for the offences
under the Atrocities Act and thereafter committing the case to the
Special Court - Impugned judgment quashing the entire criminal
proceedings against accused for offences u/ss.452, 323, 325, 504,
506(2), 114, IPC and s.3(1)(x) of the Atrocities Act, is set aside -
Accused be tried by Special Court having jurisdiction - Penal Code,
1860 - ss.452, 323, 325, 504, 506(2) and 114 - Constitution of
India - Article 226 - Scheduled Castes And The Scheduled Tribes
(Prevention Of Atrocities) Amendment Act, 2015.
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.14 - Object and purpose of - Discussed.
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Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.14 - Pre and Post Amendment - Discussed
- Scheduled Castes And The Scheduled Tribes (Prevention Of
Atrocities) Amendment Act, 2015.
Code of Criminal Procedure, 1973 - s.482 - Held: Criminal
proceedings cannot be quashed in exercise of powers u/s.482 on
the ground of delay in lodging of FIR.
Code of Criminal Procedure, 1973 - s.197 - If applicable -
Serious allegations against accused-Police Officers of misuse of
powers - Held: It is debatable whether the acts alleged to have
been done by the accused can be said to be part of official duties
and thus if power u/s.197 would apply - Further, lack of sanction
for prosecution u/s.197 can not be a ground to quash criminal
proceedings u/s.482, CrPC.
Code of Criminal Procedure, 1973 - ss.460, 190 - Held: Even
considering s.460, if any Magistrate not empowered to take
cognizance of an offence u/clause (a) or (b) of sub-section(1) of
s.190, takes cognizance, such irregularities do not vitiate
proceedings.
Words & Phrases - "only", missing in second proviso to s.14
- Intention of legislature - Discussed - Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Second
proviso to s.14.
Allowing the appeal, the Court
HELD: 1.1 The object and purpose of insertion of Section
14 is to provide speedy trial for the offences under the Atrocities
Act, 1989 and to avoid the delay which was taking place by the
committal of the offence by the Magistrate to the Special Court /
Sessions Court. [Para 8.2][478-G]
Rattiram and Others vs. State of Madhya Pradesh
reported in (2012) 4 SCC 516: [2012] 3 SCR 496 -
relied on.
1.2 Second proviso to Section 14 of the Atrocities Act which
has been inserted by Act 1 of 2016 w.e.f. 26.1.2016 confers power
upon the Special Court so established or specified for the purpose
SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI
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of providing for speedy trial also shall have the power to directly
ta

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[2021] 10 S.C.R. 460
460
SHANTABEN BHURABHAI BHURIYA
v.
ANAND ATHABHAI CHAUDHARI & ORS.
(Criminal Appeal No. 967 of 2021)
OCTOBER 26, 2021
[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Proviso to s.14 inserted by amendment -
Code of Criminal Procedure, 1973 - ss.207, 209, 193, 482 -
Offences under Atrocities Act - Second proviso to s.14 confers
powers upon the Special Court constituted u/s.14 also to directly
take cognizance of such offences - Cognizance taken by Magistrate
and thereafter case committed to the Special Court - Criminal
proceedings, if vitiated - High Court quashed and set aside the FIR
as well as order passed by the Magistrate taking cognizance and
issuing summons for offences under IPC as well as Atrocities Act -
On appeal by original informant/complainant, held: It cannot be
said that proviso to s.14 takes away jurisdiction of the Magistrate
to take cognizance and thereafter to commit the case to the Special
Court for trial for the offences under the Atrocities Act - Merely
because the Magistrate had taken cognizance of the offences and
thereafter the case was committed to the Special Court, it cannot be
said that entire criminal proceedings including FIR and chargesheet etc. are vitiated - Unless the rights which flow from s.14 of
the Atrocities Act are affected, it cannot be said that the accused is
prejudiced by the Magistrate taking cognizance for the offences
under the Atrocities Act and thereafter committing the case to the
Special Court - Impugned judgment quashing the entire criminal
proceedings against accused for offences u/ss.452, 323, 325, 504,
506(2), 114, IPC and s.3(1)(x) of the Atrocities Act, is set aside -
Accused be tried by Special Court having jurisdiction - Penal Code,
1860 - ss.452, 323, 325, 504, 506(2) and 114 - Constitution of
India - Article 226 - Scheduled Castes And The Scheduled Tribes
(Prevention Of Atrocities) Amendment Act, 2015.
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.14 - Object and purpose of - Discussed.
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Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.14 - Pre and Post Amendment - Discussed
- Scheduled Castes And The Scheduled Tribes (Prevention Of
Atrocities) Amendment Act, 2015.
Code of Criminal Procedure, 1973 - s.482 - Held: Criminal
proceedings cannot be quashed in exercise of powers u/s.482 on
the ground of delay in lodging of FIR.
Code of Criminal Procedure, 1973 - s.197 - If applicable -
Serious allegations against accused-Police Officers of misuse of
powers - Held: It is debatable whether the acts alleged to have
been done by the accused can be said to be part of official duties
and thus if power u/s.197 would apply - Further, lack of sanction
for prosecution u/s.197 can not be a ground to quash criminal
proceedings u/s.482, CrPC.
Code of Criminal Procedure, 1973 - ss.460, 190 - Held: Even
considering s.460, if any Magistrate not empowered to take
cognizance of an offence u/clause (a) or (b) of sub-section(1) of
s.190, takes cognizance, such irregularities do not vitiate
proceedings.
Words & Phrases - "only", missing in second proviso to s.14
- Intention of legislature - Discussed - Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Second
proviso to s.14.
Allowing the appeal, the Court
HELD: 1.1 The object and purpose of insertion of Section
14 is to provide speedy trial for the offences under the Atrocities
Act, 1989 and to avoid the delay which was taking place by the
committal of the offence by the Magistrate to the Special Court /
Sessions Court. [Para 8.2][478-G]
Rattiram and Others vs. State of Madhya Pradesh
reported in (2012) 4 SCC 516: [2012] 3 SCR 496 -
relied on.
1.2 Second proviso to Section 14 of the Atrocities Act which
has been inserted by Act 1 of 2016 w.e.f. 26.1.2016 confers power
upon the Special Court so established or specified for the purpose
SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI
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of providing for speedy trial also shall have the power to directly
take cognizance of the offences under the Atrocities Act.
Considering the object and purpose of insertion of proviso to
Section 14, it cannot be said that it is not in conflict with the
Sections 193, 207 and 209 of the Code of Criminal Procedure,
1973. It cannot be said that it takes away jurisdiction of the
Magistrate to take cognizance and thereafter to commit the case
to the Special Court for trial for the offences under the Atrocities
Act. Merely because, Magistrate has taken cognizance of the
offences and thereafter the trial / case has been committed to
Special Court established for the purpose of providing for speedy
trial, it cannot be said that entire criminal proceedings including
FIR and charge-sheet etc. are vitiated and on the aforesaid ground
entire criminal proceedings for the offences under Sections 452,
323, 325, 504, 506(2) and 114, IPC of the Indian Penal Code and
under Section 3(1)(x) of the Atrocities Act are to be quashed and
set aside. In view of insertion of proviso to Section 14 of the
Atrocities Act and considering the object and purpose, for which,
the proviso to Section 14 of the Atrocities Act has been inserted
i.e. for the purpose of providing for speedy trial and the object
and purpose stated herein above, it is advisable that the Court
so established or specified in exercise of powers under Section14,
for the purpose of providing for speedy trial directly take
cognizance of the offences under the Atrocities Act. But at the
same time, merely on the ground that cognizance of the offences
under the Atrocities Act is not taken directly by the Special Court
constituted under Section 14 of the Atrocities Act, the entire
criminal proceedings cannot be said to have been vitiated and
cannot be quashed and set aside solely on the ground that
cognizance has been taken by the Magistrate after insertion of
second proviso to Section 14 which confers powers upon the
Special Court also to directly take cognizance of the offences
under the Atrocities Act and thereafter case is committed to the
Special Court / Court of Session. [Para 9.1][479-C-H; 480-A-B]
1.3 In support of the above conclusion, the words used in
second proviso to Section 14 are required to be considered
minutely. The word "only" is conspicuously missing. If the
intention of the legislature would have to confer the jurisdiction
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to take cognizance of the offences under the Atrocities Act
exclusively with the Special Court, in that case, the wording should
have been "that the Court so established or specified only shall
have power to directly take cognizance of offences under this
Act". Therefore, merely because now further and additional
powers have been given to the Special Court also to take
cognizance of the offences under the Atrocities Act and in the
present case merely because the cognizance is taken by the
Magistrate for the offences under the Atrocities Act and thereafter
the case has been committed to the Special Court, it cannot be
said that entire criminal proceedings have been vitiated and same
are required to be quashed and set aside. Even the aforesaid
aspect is also required to be considered from another angle i.e.
theory of prejudice to the accused. The accused is to be tried for
the offences under the Atrocities Act by Special Court / Exclusive
Special Court constituted under Section 14 of the Atrocities Act.
Even those rights are also available to the victim for the offences
under the Atrocities Act in which the trial is by the Special Court/
Exclusive Special Court constituted under Section 14 of the
Atrocities Act. Therefore, unless and until those rights which
flow from Section 14 of the Atrocities Act are affected, the accused
cannot make any grievance and it cannot be said that taking
cognizance by the Magistrate for the offences under the Atrocities
Act and thereafter to commit the case to the Special Court, he is
prejudiced. Even considering Section 460 of the Code of Criminal
Procedure, if any Magistrate not empowered by the law to take
cognizance of an offence under clause (a) or clause (b) of subsection (1) of Section 190, takes cognizance, such irregularities
do not vitiate proceedings. At the most, it can be said to be
irregular proceedings for which, it does not vitiate the
proceedings. In view of the above and for the reasons stated
above, the view taken by the High Court that as in the present
case the Magistrate has taken cognizance for the offences under
the Atrocities Act and thereafter the case is committed to the
Special Court and therefore, entire criminal proceedings are
vitiated, cannot be accepted and is unsustainable. If on the
aforesaid ground entire criminal proceedings are quashed, in that
case, it will be a premium to an accused who is alleged to have
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committed the offence under the Atrocities Act. Assuming for
the sake of argument that the procedure adopted is irregular, in
that case, why should victim who belonged to Scheduled Castes
and Scheduled Tribes community be made to suffer. [Paras 9.212][480-C; 481-B-G]
2.1 It is not correct to say that the FIR was lodged after a
period of two months and that too without any explanation. Even
otherwise, on the ground of delay in lodging FIR / complaint, the
criminal proceedings cannot be quashed in exercise of powers
under Section 482 of the Code of Criminal Procedure. The aspect
of delay is required to be considered during the trial and during
the trial when the complainant is examined on oath and a question
is put to him/her on delay and he/she can very well explain the
delay in his/her cross examination. [Para 14][482-E-G]
2.2 Now, so far as the observation made by the High Court
that in view of bar under Section 197 of the Code of Criminal
Procedure and no sanction was obtained is concerned, the
aforesaid also cannot be ground to quash criminal proceedings in
exercise of powers under Section 482 of the Code of Criminal
Procedure. Looking to serious allegations against the Police
Officers of misuse of powers, and it is alleged that innocent
persons residing in the society were beaten and even in the earlier
day the phone call was made by the complainant/victim informing
that thieves have come in the society and complaint was made
that nothing is being done despite repeated such incidents and
the alleged incident in the present case is in the midnight when
again Police Officers along with additional police staff went to the
village and the allegation against the accused are with respect to
second incident, it is debatable whether power under Section 197
of the Code of Criminal Procedure would apply and the acts which
are alleged to have been done by the accused / Police Officers
can be said to be part of official duties. Therefore, at this stage,
to quash the entire criminal proceedings in exercise of powers
under Section 482 of the Code of Criminal Procedure is
impermissible. Even assuming that the High Court was right that
in absence of sanction under Section 197, the proceedings are
vitiated, in that case, the High Court could have directed the
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authority to take sanction and then proceed, instead of completely
quashing the entire criminal proceedings. The impugned judgment
and order passed by the High Court in Special Criminal Application
No.5670 of 2017 is quashed and set aside. Accused be tried by
the Special Court having jurisdiction for the aforesaid offences.
[Paras 15, 16][482-G-H; 483-A-D, F]
State of MP v. Bhooraji and Ors. (2001) 7 SCC 679 :
[2001] 2 Suppl. SCR 128; Moly and Anr. v. State of
Kerala (2004) 4 SCC 584 : [2004] 3 SCR 346;
Vidyadharan v. State of Kerala (2004) 1 SCC 215:
[2003] 5 Suppl. SCR 524 - referred to.
Case Law Reference
[2012] 3 SCR 496
relied on
Para 3.2
[2001] 2 Suppl. SCR 128
referred to
Para 8.2
[2004] 3 SCR 346
referred to
Para 8.2
[2003] 5 Suppl. SCR 524
referred to
Para 8.2
CRIMINAL APPELLATE JURISDICTION" Criminal Appeal
No.967 of 2021.
From the Judgment and Order dated 09.05.2019 of the High Court
of Gujarat at Ahmedabad in Special Criminal Application No.5670 of
2017.
Nikhil Goel, Ms. Naveen Goel, Vinay Mathew, Advs. for the
Appellant.
Aniruddha P. Mayee, Adv. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1.0. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 09.05.2019 passed by the High Court of Gujarat passed
in Special Criminal Application No.5670 of 2017, by which, the High
Court has allowed the said Special Criminal Application and has quashed
and set aside the FIR being M Case No.2 of 2013 for the offences
punishable under Sections 452, 323, 325, 504, 506(2) and 114 of the
Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes
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and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as the "Atrocities Act") and also quashing and setting aside
the order of issuance of summons dated 15.02.2017 passed by the learned
JMFC, Jhalod in Criminal Inquiry No.108 of 2013 as well as all
consequential proceedings arising therefrom, the original informant/
complainant has preferred present Appeal.
2.0. The facts leading to the present appeal in nutshell are as
under:
2.1. That on 06.09.2013, one FIR being CR.No.I-104 of 2013
came to be registered against the husband of the original complainantappellant herein for the offences punishable under Sections 323, 353,
362, 186 and 114 of the Indian Penal Code. That the said FIR was
lodged / given at the instance of the respondent no.1 herein - original
accused no.1 who was working as Police Sub Inspector alleging inter
alia that the original accused persons named therein obstructed the public
servants in performance of their duties and was beaten by them under
the guise that they were not able to catch the thief and caused injuries to
them.
2.2. As per the case of the complainant herein, in the village there
were increasing incidents of theft and loot, due to which, the villagers
were afraid. On 6.9.2013, at about 8 pm one thief came to the house of
one Pravinbhai who lives in their society and thereafter, the police were
called; that the Police Officers came to the Society and since the people
from the society were not satisfied with the police, the accused persons
who are Police Officers got excited and thereafter, staff from SP Office,
Dahod was called and thereafter the respondent no.1 - original accused
no.1 went back to Limdi Police Station. As per the case of the
complainant, at 10.30 pm on 06.09.2013, when the residents of the society
were in their houses and at that time, the complainant was sitting outside
her house, three Police Officers came in a car and original accused nos.
1 and 2 came to the society and all the original accused persons abused
the complainant with regard to her caste and also caused injuries to her.
As alleged in the FIR, the original accused persons also ransacked the
house of complainant and also beat the son of the complainant and took
away husband of the complainant and gave threats to them with dire
consequences. As per the case of the complainant, she tried to lodge a
formal complaint on 07.09.2013, but was unable to get the same lodged
and therefore, she was constrained to file the complaint before the learned
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Magistrate on 13.09.2013. That learned Magistrate sent the complaint
for investigation as per Section 156(3) of the Code of Criminal Procedure
by observing that having heard the complainant and perused the
documentary evidence and considering the seriousness of the case, the
investigation is required. The learned Magistrate also directed the
Investigating Officer to submit the report before 29.10.2013 and also
directed that yadi in this regard should be sent to the Dy.Sp, Dahod.
That the Investigating Officer submitted report on 29.05.2014 stating
that the allegation in the FIR with regard to beating are not supported
and as per the statement of Dy.Sp recorded on 27.5.2014, the accused
no.2 was present with him in Limdi Police Station at the time of alleged
offence and had not gone outside the police station. In the report, it was
also stated that statements of the witnesses are general and vague and
after investigation, there is no evidence to proceed with the matter.
Therefore, the Investigating Agency filed a summary report before the
concerned Magistrate to that effect.
2.3. After filing of summary report, learned Judicial Magistrate
First Class passed an order for further investigation under Section 173(8)
of the Code of Criminal Procedure on 03.10.2015 by observing that
summary report is not clear with regard to the involvement of the original
accused no.3 and other Police Officers. That thereafter, the Deputy
Superintendent of Police, SC/ST Cell, Dahod submitted its report to the
learned Magistrate pointing out that the alleged offences are prima facie
appear to have been committed by the accused persons. That thereafter,
after considering the report submitted by the Deputy Superintendent of
Police, SC/ST Cell, Dahod, the learned Magistrate vide order dated
15.02.2017 had taken cognizance of the alleged offences by issuance of
the process under Section 204 of the Criminal Procedure Code.
2.4. Feeling aggrieved and dissatisfied with the order passed by
the learned Magistrate summoning the accused/ issuing the process
against the accused for the aforesaid offences, the accused preferred
Special Criminal Application before the High Court under Article 226 of
the Constitution of India r/w Section 482 of the Code of Criminal
Procedure and prayed to quash and set aside the FIR / complaint being
M Case No. 2 of 2013 as well as order of issuance of summons dated
15.02.2017 passed in Criminal Case No.169 of 2017.
2.5. It was mainly contended on behalf of the accused that the
learned Magistrate had no authority to take cognizance of the offences
SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI
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under the provisions of the Atrocities Act and only Special Court can
take cognizance of the offences. It was submitted that the Court of
learned Magistrate is not a Special Court under the provisions of the
Atrocities Act. It was further submitted that the impugned FIR is nothing
but a counterblast to the complaint filed against the husband of the
complainant and others for the incident happened on 06.09.2013 wherein
the police was assaulted. It was also submitted on behalf of the accused
that there was a gross delay in lodging the FIR / complaint on 15.11.2013
for the offences alleged to have been committed on 06.09.2013 and the
delay has not been explained. It was further submitted that at the relevant
time Police Officers were discharging their official duties and therefore,
before initiation of any proceedings, a sanction under Section 197 of the
Code of Criminal Procedure was required and in absence of such sanction
from the competent authority, no prosecution could have been launched
/ continued against them.
2.6. The prayer to quash the FIR and the order issuing the summons
on the aforesaid ground was opposed by the learned counsel for the
original complainant. Referring to Section 14 of the Atrocities Act, it
was submitted that the Special Court has power "only for trial" and the
Special Court cannot take cognizance directly. It was further submitted
that after filing of the summary report, the learned Magistrate directed
further investigation, whereupon, Dy.Sp submitted summary report after
investigation submitting that the offence has been made out.
2.7. In response, it was submitted on behalf of the accused that in
view of the amended Section 14 of the Atrocities Act, the Special Court
can take direct cognizance of the offence and therefore, now learned
Magistrate is not empowered to take cognizance directly.
2.8. By impugned judgment and order, the High Court has allowed
the Special Criminal Application and quashed and set aside the FIR as
well as order passed by the learned Magistrate taking cognizance and
issuing summons for the Indian Penal Code offences as well as offences
under the Atrocities Act mainly on the ground that in view of the
amendment to Section 14 of the Atrocities Act, the Special Court can
take cognizance directly and the jurisdiction of the learned Magistrate
can be said to be ousted and looking at the allegation in the FIR, in
absence of sanction under Section 197 of the Code of Criminal Procedure
from the State Government, the concerned Court ought not to have taken
cognizance of the offences.
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2.9. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Gujarat quashing and setting
aside the entire criminal proceedings / FIR and the order passed by the
learned Magistrate taking cognizance and issuing the summons for the
offences under the Indian Penal Code as well as under the provisions of
Atrocities Act, the original complainant has preferred present appeal.
3.0. Shri Nikhil Goel, learned counsel for the appellant has
vehemently submitted that High Court has misinterpreted and
misconstrued the amendment to Section 14 of the Atrocities Act. It is
submitted that as per the High Court, after amendment to Section 14 of
the Atrocities Act, cognizance can only be taken by the learned Special
Judge/Court and therefore, taking cognizance and issuance of summons
by the learned Magistrate can be said to be prohibited by law and
consequently quashing the criminal proceedings / FIR on the aforesaid
ground is erroneous. It is submitted that apart from the fact that the
amendment to Section 14 of the Atrocities Act was brought in the year
2016, second proviso to Section 14 (as amended) cannot be read as a
standalone provision and must be read with the purpose it seeks to
achieve. It is submitted that by inserting second proviso to Section 14,
the purpose it seeks to achieve is providing for speedy trial. It is submitted
that amendment does not exclude the provision of Code of Criminal
Procedure but only clarify the position that the bar of Section 193 of the
Code of Criminal Procedure would not be ipso facto applicable. It is
submitted that it gives a choice to the Investigating Agency to file the
report either before the Magistrate who will commit the matter to the
Court of Special Judge under Section 209 of the Code of Criminal
Procedure or to file it directly before the Special Court. It is submitted
that interpretation given by the High Court would add premium to the
alleged criminal actions of an accused who would not even be tried for
serious offences merely because a final report has been forwarded to a
wrong forum.
3.1. It is submitted that unlike the old Code, Section 209 of the
Code of Criminal Procedure, 1973 does not give any power of inquiry to
the Magistrate and the Magistrate is duty bound to commit a matter for
trial to the Court of Session once it is found triable by the Court of
Session.
3.2 It is submitted that as such and it appears that amendment
was required in view of the interpretation given to unamended Section
SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI
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14 in the judgment of this Court in the case of Rattiram and Others vs.
State of Madhya Pradesh reported in (2012) 4 SCC 516.
3.3. It is submitted that even otherwise the irregularity of sending
a final report to a wrong Court can be said to be merely an irregularity
which does not vitiate the proceedings considering Section 460(e) of the
Code of Criminal Procedure. It is submitted that the rationale behind
Section 460(e) is that the entry of an accused in our criminal jurisprudence
only happen after a cognizance is taken and his first right of objection is
contemplated only at the stage of framing of the charge (subject to the
provisions of bail and search and seizure). It is submitted that the accused
is not affected by the forum which takes cognizance and issues summons
to him so long as he gets to agitate his rights before the correct forum. It
is submitted that therefore, the impugned judgment and order passed by
the High Court overlooks Section 460(e) of the Code of Criminal
Procedure.
3.4. It is submitted that the law laid down relating to cognizance
must relate back to the date of commission of the offence which in this
case is 06.09.2013. It is submitted that cognizance is to be taken of the
"offence" and not the offender. It is submitted that therefore, any
amendment which is in the nature of substantive right would only be
prospective unless expressly stated to be retrospective. It is submitted
that if Section 14 of the Atrocities Act is to be interpreted to give a
substantive right to the accused, then the date of offence becomes
relevant. It is submitted that however if Section 14 of the Atrocities Act
is interpreted to be only procedural not affecting the right of an accused
then the impugned judgment is ipso facto incorrect because it has scuttled
the entire proceedings at the inception on the ground of violation of Section
14 of the Atrocities Act.
3.5. It is further submitted that even the finding recorded by the
High Court that there was a delay of two months in lodging the FIR is
contrary to the material on record. It is submitted that the alleged offence
is committed on 06.09.2013 and in fact earlier an attempt was made in
getting FIR registered on 07.09.2013 i.e. on the next day but the FIR
was not lodged as the accused were Police Officers and thereafter, the
complainant was constrained to file complaint before the learned
Magistrate which was filed on 13.09.2013 and only after an order dated
26.09.2013 of the learned Magistrate, an FIR was registered. It is
submitted that therefore, as such there was no delay at all in lodging the
FIR and therefore, the finding on delay is erroneous and without merit.
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3.6. It is further submitted by Shri Nikhil Goel, learned counsel for
the complainant that even bar under Section 197 of the Code of Criminal
Procedure would not apply to the acts done which are not part of the
official duty. It is submitted that this is a case of patent abuse of power.
It is submitted that even the issue of sanction is subject to the test of
prejudice and failure of justice. It is submitted that even assuming the
provisions of Section 197 applies, the High Court ought to have directed
the authorities to take sanction and then proceed instead of completely
quashing the case. Making above submissions, it is prayed to quash and
set aside the impugned judgment and order passed by the High Court
and direct the learned Trial Court to dispose of the trial in time bound
manner.
4.0. Shri Aniruddha P. Mayee, learned counsel appearing on behalf
of the State has supported the appellant.
5.0. Though served, nobody appeared on behalf of the private
respondent.
6.0. Heard learned counsel appearing on behalf of the appellant
and learned counsel appearing on behalf of the State.
7.0. By the impugned judgment and order, the High Court has
quashed and set aside the entire criminal proceedings for the offences
under Sections 452, 323, 325, 504, 506(2) and 114 of the Indian Penal
Code and under Section 3(1)(x) of the Atrocities Act on the ground that
(1) in the present case cognizance of the charge-sheet has been taken
by the learned Magistrate and thereafter the case was committed to the
learned Court of Session / Special Court and therefore, in view of second
proviso to Section 14 of the Atrocities Act, cognizance could not be
taken by the learned Magistrate; (2) That there was a delay in lodging
the complaint for which there is no explanation given for delay of such
complaint; (3) before launching the prosecution, the sanction under
Section 197 of the Code of Criminal Procedure has not been obtained of
the competent authority.
8.0. Therefore, the issue/question posed for the consideration of
this Court is, whether in a case where cognizance is taken by the learned
Magistrate and thereafter the case is committed to the learned Special
Court, whether entire criminal proceedings can be said to have been
vitiated considering the second proviso to Section 14 of the Atrocities
Act which was inserted by Act 1 of 2016 w.e.f. 26.1.2016?
SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI
CHAUDHARI & ORS. [M. R. SHAH, J.]
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8.1. While considering the aforesaid issue/question, legislative
history of the relevant provisions of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, more particularly, Section
14 pre-amendment and post amendment is required to be considered.
Section 14 as stood pre-amendment and post amendment reads as under:
"Section 14. Special Court (Pre amendment): 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"
"Section 14. Special Court and Exclusive Special Court (Post
amendment): (1) 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, establish an Exclusive Special Court for one or more
Districts:
Provided that in Districts where less number of cases under
this Act is recorded, the State Government shall, with the
concurrence of the Chief Justice of the High Court, by
notification in the Official Gazette, specify for such Districts,
the Court of Session to be a Special Court to try the offences
under this Act;
Provided further that the Courts so established or specified
shall have power to directly take cognizance of offences under
this Act."
8.2. This Court had an occasion to consider Section 14 preamendment in the case of Rattiram and Ors (Supra). In the case
before this Court which was pre-amendment, the learned Sessions Court
straightway took the cognizance. This Court considered Section 193 of
the Code of Criminal Procedure and formulated the questions whether
the Special Court as constituted under the Atrocities Act is a Court of
Sessions; and whether there is a constitutional provision in the Act
enabling the said Court to take cognizance. This Court after taking note
of Section 193 of the Code of Criminal Procedure observed that on plain
reading of Section 193 of the Code of Criminal Procedure, it is clear that
no Court of Session can take cognizance of any offence as a Court of
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original jurisdiction except as otherwise expressly provided by the Code
or by any other law for the time being in force. At this stage, it is required
to be noted that pre-amendment to Section 14 there was no provision
permitting / authorizing the learned Court / Special Court to take
cognizance of offences under the Atrocities Act. Therefore, this Court
formulated the aforesaid questions. At this stage, it is required to be
noted that perceiving divergent and contradictory views as regards the
effect and impact of not committing an accused in terms of Section 193
the Code of Criminal Procedure in cases where charge-sheet is filed
under Section 3(1)(x) of the Atrocities Act and cognizance is directly
taken by the Special Judge under the Act, a two-Judge Bench thought it
fit to refer the matter to a larger Bench and on the basis of the said
reference, the matter was placed before the Bench consisting of three
Hon'ble Judges. While referring the matter to the Larger Bench three
conflicting decisions one in the case of State of MP vs. Bhooraji and
Ors. reported in (2001) 7 SCC 679, in the case of Moly and Anr. vs
State of Kerala reported in (2004) 4 SCC 584 and in the case of
Vidyadharan vs. State of Kerala reported in (2004) 1 SCC 215 were
noted. In the case of Bhooraji (supra), it was held by this Court taking
aid of Section 465(1) of the Code that when 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 proceeding and
cognizance was taken by the Special Court, inasmuch as the same does
not give rise to failure of justice. On the other hand, in the case of Moly
(supra), it was held that 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 committed to it and, therefore, there should
be retrial or total setting aside of the conviction, as the case may be.
After considering the object and purpose of committal and after taking
into consideration Section 207 (pre-amendment), 207-A (pre-amendment)
and 209 of the old Code of Criminal Procedure, 1973, it is observed and
held by this Court that while committing the case to the Court of Session
under Section 209 of the Code of Criminal Procedure, in a case where
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 and thereafter if the learned Magistrate is satisfied that the
offences are triable exclusively by the Court of Session, he shall commit
the case to the Court of Sessions. While holding so, this Court considered
SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI
CHAUDHARI & ORS. [M. R. SHAH, J.]
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the relevant provisions under the old Code- Code of Criminal Procedure,
1898 and the relevant provisions of Code of Criminal Procedure, 1973
and after having noted that 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, it is observed that 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. In paras 53
to 58, it is observed and held as under:
"53. On a bare perusal of the above quoted 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 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,
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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, the Parliament by Act 26 of 1955 curtailed the
said procedure and brought in Section 207A to the old Code.
Later on, the Law Commission of India in its 41st Report,
recommended thus:-
18.19. 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 time- consuming, 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.
SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI
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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 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 of 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.