Shantaben Bhurabhai Bhuriya vs Anand Athabhai Chaudhari & Ors.

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 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 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 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 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.