Allowed

Santosh Kumar Dixit v. State of U.P.

Allahabad HC21 Mar 2018A482/2194/2018

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the Court held that following the 2015 amendment, the power to take cognizance of offences under Section 3 of the SC/ST Act lies exclusively with Special Courts. A Magistrate taking cognizance is without jurisdiction.

What did the court decide?

The order dated 17.9.2017 passed by the Magistrate directly taking cognizance was held to be without jurisdiction and was quashed.

Santosh Kumar Dixit Vs State of U.P. — Constitutional and Fundamental Rights | Allahabad HC (2018)

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Court No. - 52 A.F.R.

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Case :- APPLICATION U/S 482 No. - 2194 of 2018

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Applicant :- Santosh Kumar Dixit and others Opposite Party :- State Of U.P. Counsel for Applicant :- Ramesh Chandra Yadav Counsel for Opposite Party :- A.G.A.

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Hon'ble Rajul Bhargava,J.

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Heard Sri Ramesh Chandra Yadav, learned counsel for the applicants and learned A.G.A. for the State.

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The present application has been filed with the prayer to quash Charge Sheet No. 03 of 2016 dated 12.1.2016, cognizance order dated 17.9.2017 as well as entire proceeding of Criminal Case No. 1038 of 2017 (State Versus Santosh Kumar and others) under Sections 323, 325, 352, 504, 506 I.P.C. and 3(1)10 of SC/ST Act arising out of Case Crime No.582 of 2015, Police Station Handia, District Allahabad, pending in the court of Additional Chief Judicial Magistrate, Court No.9, Allahabad.

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The important question of law that emanates for consideration in the present application is whether the Magistrate can directly take cognizance of offence punishable under Section 3(1)X of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 or it is the special court constituted under Section 14 of the Act, 1989 has the jurisdiction to take cognizance in view of amended provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Amending Act, 2015 (Act No.1 of 2016).

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In brief, the facts relevant for determination of present controversy are that the opposite party no.2 lodged the F.I.R. against the applicants and others regarding an incident which is said to have taken place on 16.12.2015 which was registered as Case Crime No.582 of 2015 under Sections 147, 323, 325, 308, 352, 452, 504,

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506 I.P.C. and 3(1)X of SC/ST Act, Police Station Handia, District Allahabad. After investigation, the Investigating Officer did not find complicity of some of the accused and submitted charge sheet on 12.1.2016 against the applicants under the aforesaid sections. The said charge sheet was filed in the court of Additional Chief Judicial Magistrate, Allahabad which was registered as Charge-sheet No.3 of 2016 and learned Magistrate took cognizance of the offence upon the aforesaid charge-sheet vide order dated 17.9.2017. The order taking cognizance is contained in the certified copy of the charge sheet which has been annexed as Annexure-7 to the affidavit.

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As in the present application pure and simple question of law is involved, I do not deem it necessary to issue notice to opposite party no.2 for filing counter affidavit as the same would prolong the proceedings and decide the same in the light of amended provisions in the Act, 1989. Learned A.G.A. has no objection in this behalf.

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Learned counsel for the applicants impugning the legality, correctness and otherwise of the order passed by learned Magistrate has submitted that under the amended Act, 1989 the power to take cognizance has been exclusively conferred to Special Court as defined under Section 2(d) of the Act of 1989 which states that “Special Court” means a Court of Session specified as a Special Court in Section 14 of Act, 1989 and thus the learned Magistrate was not empowered to take cognizance of the offence under Section 3(1)X of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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Now, turning to the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, 2015 [Act 1 of 2016]. To resolve the aforesaid issue, let me first look into the definition of the term Special Court as

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defined in Section 2(d) of the Act, which reads as follows:

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“Special Court, means a Court of Session specified as a Special Court in Section 14.”

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Section 14 of the Act, before the amendment Act of 2015, stood as follows:

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“14. Special Court.- 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.”

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A reading of the said provision would indicate that a Court of Session shall be notified as a Special Court.

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Section 14 of the SC and ST Act was drastically amended by the Amendment Act (1 of 2016). Section 14 has been now replaced by an entirely new provision. Thus, the amended Section 14 of the Act reads as follows:

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14. (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:

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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:

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Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.

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Thus in view of amended provisions exclusive Special Court as well as Special Court shall exercise original jurisdiction to take cognizance of the offence under the Act and proceed with trial of the

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case not being hindered by Section 193 Cr.P.C. The said Special Courts, were not originally empowered to take cognizance of offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, directly as the Special Courts were hindered by Section 193 of Code of Criminal Procedure as already pointed out under the Special Court notified as per first proviso of Section 14 of the Act as amended has got power to directly take cognizance without there being any need for committal.

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I find sufficient force in the submissions made by learned counsel for the applicants. Thus the Magistrate was not a Special Court as notified by the State Government within the meaning of Section 14 of the Act, 1989 read with Section 193 of Code of Criminal Procedure. Therefore, learned Magistrate has absolutely no jurisdiction to entertain and take cognizance of offence under Section 3(1)X of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Special Courts constituted under Section 14 of Act, 1989 have been empowered to take cognizance of offence directly under this Act with effect from 1.1.2016 and in the present case learned Magistrate has taken cognizance of the offence by order dated 17.9.2017. Therefore, by no stretch of imagination, impugned order directly taking cognizance of the offence under Section 3(1)X of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 can be held to be valid exercise of jurisdiction by learned Magistrate, rather it is a case of exercise of jurisdiction by learned Magistrate not vested in it by law and it is held to be without jurisdiction and without authority of law.

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Accordingly, it is held that order dated 17.9.2017 passed by learned Magistrate directly taking cognizance of the offence under Section 3(1)X of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is without jurisdiction and without authority

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of law and runs contrary to the amended provisions of Section 14 of Act of 1989. Thus it is accordingly quashed. However, respondent no.1 is at liberty to proceed in accordance with law, if so advised by submitting the charge sheet before the appropriate forum. It may be clarified that this Court has not touched upon or considered the merits of the proceedings.

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The present application under Section 482 Cr.P.C., accordingly, stands allowed.

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Order Date :- 21.3.2018 MN/-

Santosh Kumar Dixit v. State of U.P.

Case brief

What is this about?

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Santosh Kumar Dixit v. State of U.P.

Case brief

What is this about?

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