In a very significant judgment titled Shantaben Bhurabai Bhuriya vs Anand Athabai Chaudhari & Ors in Criminal Appeal No. 967 of 2021 delivered as recently as on October 26, 2021, the Apex Court has taken a clear stand that criminal proceedings under SC-ST (Prevention of Atrocities) Act is not vitiated merely because the Magistrate had taken cognizance and committed the case to Special Court. It must be apprised here that the Bench of Apex Court comprising of Justice MR Shah and Justice Aniruddha Bose made it clear that the insertion of second proviso to Section 14 of the Act only gives additional powers to the Special Act to take cognizance of the offences under the Act.

The Bench also very rightly clarified that:
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.

To start with, this learned, latest, laudable and landmark judgment sets the ball rolling by first and foremost putting forth in para 1.0 that:
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 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.

To put things in perspective, the Bench then while dwelling on the facts envisages in para 2 that:
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 complainant- appellant 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 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.

While continuing in the same vein and referring to the relevant points of para 2, the Bench then states that:
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.

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.

Be it noted, the Bench then remarks in para 8 that:
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?

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.

Most significantly, what forms the cornerstone of this notable judgment is then stated by the Bench in para 9 that:
9.1. On fair reading of Sections 207, 209 and 193 of the Code of Criminal Procedure and insertion of proviso to Section 14 of the Atrocities Act by Act No.1 of 2016 w.e.f. 26.1.2016, we are of the opinion that on the aforesaid ground the entire criminal proceedings cannot be said to have been vitiated. 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, learned 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 of the Indian Penal Code and under Section 3(1)(x) of the Atrocities Act are to be quashed and set aside.

It may be noted that 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, as observed herein above, 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 learned 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.

9.2. In support of the above conclusion, the words used in second proviso to Section 14 are required to be considered minutely. The words used are Court so established or specified shall have power to directly take cognizance of the offences under this Court. 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 learned Magistrate for the offences under the Atrocities Act and thereafter the case has been committed to the learned Special Court, it cannot be said that entire criminal proceedings have been vitiated and same are required to be quashed and set aside.

No less significant is what is then stated in para 10 that:
Even the aforesaid aspect is also required to be considered from another angle i.e. theory of prejudice to the accused. In the case of Rattiram and Ors (supra), in which, this Court had an occasion to consider Section 14 of the Atrocities Act (pre amendment) has specifically observed and held that:

1. Under the Code of Criminal Procedure, 1973 in the committal proceedings, the Magistrate is only required to see whether offence is exclusive triable by the Court of Session
2. the limited jurisdiction conferred on the Magistrate under Section 209 of the Code of Criminal Procedure is only to verify the nature of the offences;
3. after having satisfied of verifying the nature of the offences that the offences triable exclusively by the Court of Sessions, he shall commit the case to the Court of Sessions;
4. because of restricted role assigned to the Magistrate at the stage of committal under the new Code, the non-compliance with the same and raising of objection in that regard after conviction attracts the applicability of the principles of failure of justice and the convict 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;
5. it would be a totally inapposite and inappropriate to hold that such non-compliance vitiates the trial.

Looked at differently, the Bench then adds in para 11 that:
The issue involved in the present appeal is also required to be considered from another angle. 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 learned Magistrate for the offences under the Atrocities Act and thereafter to commit the case to the Special Court, he is prejudiced.

Furthermore, the Bench then adds in para 12 that:
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 sub-section (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 learned Magistrate has taken cognizance for the offences under the Atrocities Act and thereafter the case is committed to the learned 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 given 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.

Quite forthrightly, the Bench then also clearly states in para 14 that:
Now, so far as the observation made by the High Court while quashing and setting aside the entire criminal proceedings that there was delay of two months in lodging the complaint is concerned, it appears that while observing so, the High Court has not at all adverted itself to the relevant pleadings and even the case on behalf of the victim / complainant. It is to be noted that date of alleged offence is 6.9.2013. It was the specific case on behalf of the victim that an attempt was made in getting FIR registered on 7.9.2013 i.e. on the very next day. But FIR was not registered, probably might be because the accused were Police Officers. Be that as it may, even the complaint before learned Magistrate was filed on 13.09.2013 and thereafter after an order was passed by the learned Magistrate on 26.09.2013 under Section 156(3) of the Code of Criminal Procedure, the police registered the FIR and started the investigation. Therefore, as such, 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. But on the aforesaid ground, entire criminal proceeding cannot be quashed in exercise of powers under Section 482 of the Code of Criminal Procedure.

To be sure, the Bench then hastens to add in para 15 that:
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 very 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.

Finally, the Bench then holds in the final para 16 that:
In view of the above and for the reasons stated above, 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 quashing and setting aside the entire criminal proceedings for the offences punishable under Sections 452, 323, 325, 504(2) and 114 of the Indian Penal Code and under Section 3(1)(x) of the Atrocities Act, in exercise of powers under Section 482 of the Code of Criminal Procedure r/w Article 226 of the Constitution of India is hereby quashed and set aside. Now, accused be tried by the learned Special Court having jurisdiction for the aforesaid offences. Present appeal is allowed to the aforesaid extent.

Nothing more remains to be said. The Apex Court has stated elaborately as to why the proceedings under SC-ST Act are not vitiated merely because cognizance was taken by Magistrate and the case was committed to Special Court. All the courts must certainly follow this in similar such cases.

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh