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The Indian Penal Code
The Code Of Criminal Procedure, 1973
Section 227 in The Indian Penal Code
Section 3 in The Indian Penal Code
Section 465 in The Indian Penal Code

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Kerala High Court
Kochudas Ragesh vs Roy Marcose on 13 January, 2005
Equivalent citations: 2005 (1) KLT 776
Author: M S Nambiar
Bench: M S Nambiar

ORDER

M. Sasidharan Nambiar, J.

1. The complainant in S.C. 1/94 on the file of Sessions Court, Kollam is challenging the order of discharge passed under Section 245(1) of the Code of Crl.P.C. by the learned Sessions Judge. Respondents 1 to 4 were the accused in the case. Petitioner filed the complaint alleging that the four accused committed the offences punishable under Section 323 and 324 read with Section 34 of IPC and Section 3(1)(ix) and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, hereinafter referred to as the Act. The petitioner claiming to be a member of the scheduled caste filed the private complaint alleging that accused who are not members of the scheduled caste and scheduled tribe committed the offences alleged in the complaint. The learned Sessions Judge following procedure provided under the warrant trial after recording the evidence of five witnesses and marking Exts.P1 to P14, as per order dated 6.1.95 discharged the accused under Section 245(1) of the Crl.P.C. holding that petitioner did not make out a case which if unrebutted would warrant the conviction of the accused.

2. The petitioner is challenging that order in this revision contending that the learned Sessions Judge committed the illegality of following the procedures provided under the warrant trial and as a Sessions Judge, accused could be discharged only under Section 227 of the Cr.P.C. and at the stage of an enquiry under Section 227, the learned Sessions Judge could only consider the material produced by the petitioner and the impugned order of discharge is therefore illegal.

3. Heard the learned counsel appearing for the petitioner and the learned counsel for the respondents.

4. The learned counsel appearing for the petitioner attacked the order of the learned Sessions Judge firstly on the ground that the Sessions Judge has no jurisdiction to take cognizance of the case without a committal and therefore the order of discharge is not sustainable. The second ground taken was that as the Sessions Judge has to follow the procedure provided for the trial of Sessions trial under the Code discharging the accused under Section 245 of the Code, of Cr.P.C. following warrant trial is illegal and for that reason alone the order is to be set aside. The learned counsel appearing for the petitioner also relied on the decision of the Apex Court in Vidyadharan v. State of Kerala, 2004 (1) KLT 105 and argued that the entire proceeding of the learned Sessions Judge is illegal and therefore it has to be set aside. The learned counsel appearing for the respondents though admitted that the Sessions Court could not have taken cognizance of the case without a committal; would justify it on the ground that on that date in view of the decision of the Full Bench of this Court, the Court below took cognizance of the case and even if there was any illegality, it does not warrant any interference on the impugned order. The learned counsel relied on the decision in State of M.P. v. Bhooraji, (2001) 7 SCC 679 and Asokan Nambiar v. State of Kerala, 2005 (1) KLT 12.

5. The allegation of the petitioner in his private complaint was that accused committed the offences under Section 323 and 324 read with Section 34 and Section 3(1)(ix) and 3(1)(x) of the Act. Cognizance was taken by the learned Sessions Judge without an order of committal. Learned Sessions Judge did not follow the procedure under Chapter XVIII of the Code of Cr.P.C. prescribed for the trial before a Court of Session. If the procedure provided under Chapter XVIII is to be followed when the accused appears or brought before the Sessions Court in pursuance of an order of committal, the prosecution has to open the case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. If on consideration of the record of the case and the documents submitted thereunder and hearing the submission of the accused and the prosecution, the Sessions Judge considers that there is no sufficient ground for proceeding against the accused he shall discharge the accused recording the reasons for doing it under Section 227. If after such consideration and hearing, the Sessions Judge is of opinion that there is ground for proceeding that the accused has committed an offence but not exclusively triable by the Court of Session, he has to frame a charge against the accused and transfer the case for trial to the Chief Judicial Magistrate and thereafter the Chief Judicial Magistrate has to try the offence in accordance with the procedure for the trial of warrant cases instituted on a police enquiry. If after consideration as provided under Section 227, the Sessions Judge is of the opinion that there is ground for presuming that the accused has committed an offence, which is exclusively triable by the Sessions Court, he shall frame a charge in writing against the accused and thereafter the charge shall be explained to the accused and he shall be asked whether he pleads guilty or claims to be tried. Being the Sessions Judge, even if the learned Sessions Judge is competent to take cognizance without a committal, as it was believed to be the legal position in view of the Full Bench decision of this Court in Hareendran v. Sarada, 1995 (1) KLT 231, he could have followed procedure only prescribed under Chapter XVIII and if so, the accused could have been discharged only under Section 227 of Cr.P.C. But the learned Sessions Judge has followed the procedure prescribed for trial of warrant cases instituted otherwise than on police report under Chapter XIX B and proceeded to take evidence produced by the complainant and the witnesses and considering the evidence so recorded and produced, discharged the accused under Section 245(1) of Cr.P.C. Therefore even if the learned Sessions Judge has jurisdiction to take cognizance without an order of committal, which was not the case, the learned Sessions Judge has committed the illegality of proceeding under Chapter XIX B instead of Chapter XVIII of the Code. Therefore the procedure followed is clearly illegal.

6. Though the Apex Court in Gangula Ashok v. State of A. P., (2000) 2 SCC 504, declared that committal proceedings are necessary for a specified Court constituted under the Act to take cognizance of the offences to be tried under the Act. But till the said declaration the legal position which held the field in the State was the one held in Hareendran's case, 1995 (1) KLT 231. The Apex Court in Vidyadharan v. State of Kerala, 2004 (1) KLT 105, held that even after a Court of Sessions being specified as a Special Court would continue to be essentially a Court of Session and designation of it as a Special Court would not delude it of its character or even powers as a Court of Session. It was therefore held:- "The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fascicule of provision for trial before a Court of Session".

The Apex Court then declared:--

"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 (1) KLT 609, 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 the original jurisdiction, and the requirements of Section 193 of the Code were not met".

As an inevitable inclusion the conviction of the accused for the offences under the Act was therefore set aside. Learned counsel appearing for the respondents would argue that Apex Court in State of M.P. v. Bhooraji, (2001) 7 SCC 679, though held that the trial conducted by a Special Court for an offence under the Act is not vitiated for want of committal and if there is no failure of justice, the trial is valid and therefore the order of the learned Sessions Judge has not to be interfered for want of committal by a Magistrate. Learned counsel also submitted that this Court has taken that view in Asokan Nambiar v. State of Kerala, 2005 (1) KLT 12, and therefore the impugned order is not to be interfered on that ground.

7. A learned Single Judge of this Court has considered the effect of Vidhyadharan 's case and Bhooraji 's case in Asokan Nambiar v. State of Kerala, 2005 (1) KLT 12. In that case, the Sessions Court took cognizance of the offence under Section 3(1)(x) of the Act and Section 323 of IPC without an order of committal by the Magistrate under Section 209 of the Code on the basis of a final report submitted by the Police before the Special Court notified under Section 14 of the Act. The learned Sessions Judge followed the procedure prescribed under Chapter XVIII. Charge was framed and when read over the accused pleaded not guilty. Prosecution examined witnesses and marked the documents and the accused was questioned under Section 313 of Cr.P.C. and he was called upon to enter on his defence and to adduce evidence. He did not adduce any evidence. The learned Sessions Judge convicted him as provided under Section 235 of the Code. The accused challenged the conviction in the appeal which was considered by the learned Single Judge. It was contended before the learned Single Judge that in the later decisions of the Supreme Court namely Vidyadharan v. State of Kerala, 2004 (1) KLT 105 and Kuttappan v. E.K. Nayanar, 2004 (2) KLT 145. Conviction was set aside as there was no committal order and therefore the accused is also to be acquitted. The learned Public Prosecutor relying on Bhooraji's case contended that notwithstanding the infraction of the provisions of Section 193 of the Cr.P.C, the completed trial need not be set aside and a de novo Trial cannot be ordered. The learned Single Judge attempted to reconcile the decisions of the Supreme Court in Bhooraji's case and Vidhyadharan's case and held that "as to what is the effect and consequence of a completed trial which commenced on the basis of improper cognizance, it is certainly Bhooraji's decision which will hold the field and in the decision of Vidhyadharan and Kuttappan the Apex Court did not consider the effect of Section 465 of the Code which was considered by the Apex Court in Bhooraji's case". Learned Single Judge also found that Bhooraji's case was not considered by the Apex Court in the later decisions in Vidhyadharan and Kuttappan and therefore held that the conviction need not be set aside and no de novo trial need be directed on the ground of non-conformity with mandate of Section 193 of Cr.P.C. The argument of the learned counsel for the respondent relying on the decision of the Apex Court in Bhooraji's case and that of the learned Single Judge in Asokan Nambiar's case is that the impugned order is not to be interfered with.

8. In Bhooraji's case, after investigation Police submitted a charge sheet before the specified Court as per Section 14 of the Act for various offences including Section 302 read with Section 149 of IPC and Section 3(2) of the Act. The Special Court convicted the accused. All the 11 convicted persons filed an appeal before the High Court. Taking advantage of the decision of the Apex Court in Gangula Ashok's case all the accused filed petition before the High Court seeking committal of the trial proceedings on the ground that the trial was without jurisdiction as the case was not committed by a Magistrate. A Division Bench of the High Court upheld the contention and quashed the entire trial and directed to return the charge sheet and the connected papers to the prosecution for re-submission to the Magistrate for further proceedings in accordance with law. It was challenged before the Apex Court. That is how Bhooraji's case came up for consideration. The Apex Court after examining Section 465 of the Code held: "A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or 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 occasioned "a failure of justice" the superior Court shall not quash the proceedings merely on the ground of such error, omission or irregularity".

The Apex Court then considered what is meant by a failure of justice. The following observation of in an earlier decision in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577, where it was held that the Criminal Court, particularly the superior Court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage was followed and it was held that the Magistrate could have only committed the cases involving offences exclusively triable by the Court of Session and therefore by skipping committal proceedings no opportunity was deprived to the accused and no advantage could have been secured by the accused if the case was sent back to the Magistrate for the purpose of re-transmission of the records through a committal order and therefore the proceedings is not vitiated. The Apex Court also found that if an objection was taken at the earliest occasion on the ground that the case should have been committed by a Magistrate, the Sessions Judge would have sent the records to the Magistrate after adopting the committal proceedings and would have proceeded with the trial and therefore held that merely on account of a procedural lapse the High Court should not have quashed the trial and directed the High Court to rehear the appeal on merits. In the later Vidhyadharan's case, the Apex Court had not considered either the effect of Section 465 of the Code of Cr.P.C. or the decision in Bhooraji's case. In the later case holding that the Sessions Court undisputedly acted as one of the original jurisdiction and the requirement of Section 193 of the Code were not met it was held that the inevitable conclusion is that the Sessions Judge could not have convicted the appellant for the offence under the Act and therefore set aside the conviction. The learned Single Judge of this Court on this ground followed Bhooraji's case in Asokan Nambiar v. State of Kerala holding that no prejudice was caused to the accused therein for want of a committal order and the trial is not vitiated. As distinguishable from the facts considered by the learned Single Judge and the Apex Court, there was no trial in this case. Even charge was not framed. The accused were acquitted, before charge was framed following the procedure under Chapter XIX B of the Code. As the learned Sessions Judge could have proceeded only under Chapter XVIII. The learned Sessions Judge could have only relied on the records of the case and the documents submitted by the prosecution, at the time of considering whether there is sufficient ground for proceeding against the accused or not, before passing an order of discharge as contemplated by Section 227 of Cr.P.C. It cannot be said that no prejudice was caused to the petitioner. The learned Sessions Judge illegally proceded under Chapter XIX B of the Code, without following the procedure under Chapter XVIII of the Code and discharged the accused under Section 245(1) when he could have discharged the accused only under Section 227 of the Code. Therefore neither Section 465 of the Code of Criminal Procedure nor the dictum of the Apex Court in Bhooraji's case could be applied to save the order passed by the learned Sessions Judge. The inevitable result is that the impugned order has to be set aside and the learned Sessions Judge is to be directed to return the complaint back to the complainant for presentation before the proper Magistrate to proceed in accordance with law. It is made clear that the merit of the case has not been considered in the revision and the Court below has to dispose the case in accordance with law.

The Criminal Revision Petition is therefore allowed. The order of discharge passed by the Sessions Judge, Kollam in SC 1/94 is set aside. The learned Sessions Judge is directed to return the complaint and the connected documents to the petitioner for resubmitting it to the proper Magistrate for proceedings under Section 209 of Code of Criminal Procedure. If it appears to the Magistrate that the offence is triable exclusively by the Special Court specified under Section 14 of the Act, he has to commit the case in accordance with law.