M.A. Kuttappan
Vs. E. Krishnan Nayanar and Another [2004] Insc 126 (26 February 2004)
N. Santosh
Hegde & B.P. Singh. B.P. Singh, J.
The
appellant in this appeal by special leave is aggrieved by the order of the High
Court of Kerala at Ernakulam in Crl. M.C. No. 2192 of 1996 dated 21st February,
1997 whereby a learned Judge of the High Court while allowing the application
filed under Section 482 of the Code of Criminal Procedure quashed the order of
the Special Judge, Thalassery whereby he had taken congnizance of the offences
under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 (hereinafter referred to as the '1989 Act' and Section
7 (1)(d) of the Protection of Civil Rights Act, 1955.
The
High Court held that none of the offences above mentioned were made out on the
basis of the complaint and the material placed before the learned Special
Judge.
In
view of the order, which we propose to make, it is neither necessary nor
advisable to refer to the facts of the case in detail lest it may prejudice the
case of the parties in any proceedings in future. However it is necessary to
briefly recapitulate the broad facts which give rise to the instant appeal.
The
appellant herein, the complainant, claiming to be a Member of the Kerala
Legislative Assembly and belonging to a Scheduled Caste known as 'Pathiyan' and
practicing as a doctor by profession owing allegiance to the Indian National
Congress (I) filed a complaint in the Court of the Special Judge for the trial of
offences under Act 33 of 1989 at Thalassery. In his complaint he alleged that
respondent No.1 belongs to Nair community, which is not a scheduled caste, was
a prominent leader of the Communist Party of India (Marxists). He at the
relevant time held the office of Chief Minister of the State of Kerala and was contesting bye-election to
the Kerala Legislative Assembly from the Thalassery Assembly Constituency. A
Convention of the Left Democratic Front was convened on September 20, 1996 in the evening at the Town Bank
Auditorium, Thalassery in which respondent No.1 made a speech wherein he made
certain disparaging observations wilfully and deliberately emphasizing the fact
that the complainant belongs to a lower and inferior category of MLA being a
member of a scheduled caste. Respondent No.1 emphasised the fact that the
appellant was a Harijan and made derogatory remarks about the complainant. This
was done in full view of the public assembled in the Auditorium.
Respondent
No.1 is alleged to have stated as follows :- "There is an MLA. Kuttappan,
that Harijan MLA, he climbed over the table and was dancing. Is this the
democratic manners of Antony? " This was the statement
attributed to respondent No.1 by witness No.1 examined on behalf of the
appellant. According to the complainant respondent No.1 stated :- "the
other thing, that Harijan, one Kuttappan, he was dancing on the table".
Though
there is a slight variance about the exact words used by respondent No.1, the
statement was to this effect.
The
learned Special Judge on a consideration of the statement of the complainant on
oath and the statements of two other witnesses examined before it, came to the
conclusion that in the facts and circumstances of the case, the commission of
an offence under Section 3(1)(x) of the 1989 Act and under Section 7(1)(d) of
the Protection of Civil Rights Act was made out. He, therefore, took cognizance
of the aforesaid offences and issued process summoning respondent No.1 to stand
trial.
The
order of the Special Judge Thalassery was challenged by respondent No.1 before
the High Court which by its impugned order quashed the order of the Special
Judge taking cognizance, finding that no offence was made out under either of
the two Acts. Aggrieved by the judgment and order of the High Court the
appellant has preferred this appeal by special leave. At the threshold counsel
for respondent No.1 submitted that the Court of Special Judge constituted under
the 1989 Act had no jurisdiction to entertain the complaint, take cognizance
and issue process against respondent No.1. Relying upon the decisions of this
Court it was submitted that the Special Judge constituted for the trial of
offences under the aforesaid 1989 Act could only exercise the powers of a
Session Court in accordance with the procedures laid down under the Code of
Criminal Procedure. It was submitted that unless an order of committal was made
by a competent Magistrate committing the accused to stand trial before the
Court of Session, the Session Judge had no jurisdiction to try an offence under
the aforesaid Act. He had no jurisdiction even to entertain a complaint made
before it under the aforesaid Act. Reliance was placed on two decisions of this
Court in Gangula Ashok and another vs. State of Andhra Pradesh : (2000) 2 SCC 504 and Vidyadharan vs. State of Kerala : JT
2003 (9) SC 89. Counsel for the appellant did not dispute the factual position
that the case had not been committed to the Special Judge for trial of
respondent No.1 and that the Special Judge entertained the complaint filed
before it and issued process against respondent No.1.
In Gangula
Ashok and another (supra) a complaint had been lodged against the appellants
before the police and after investigation the police filed a charge-sheet
before the Special Judge which was designated as Special Court for trial of offences under the aforesaid Act. The Special
Judge proceeded to frame a charge against the appellants which was challenged
before the High Court by them. A learned Judge of the High Court found that the
procedure adopted by the Investigating Officer in filing the charge sheet
before the Special Court was not in accordance with law and the Special Judge
had no jurisdiction to take cognizance of any offence under the Act without the
case having been committed to that Court. In this view of the matter the
learned Judge set aside the proceedings of the Special Court and directed the charge sheet and the connected papers to
be returned to the police officer concerned to present the same before a
Judicial Magistrate of the First Class for the purpose of committal to the Special Court. The judgment of the learned Judge
was challenged before this Court and after an exhaustive consideration of the
authorities on the subject and the statutory provisions, this Court upheld the
order of the High Court setting aside the proceeding initiated by the Special
Court, though it did not approve of the directions given by the High Court that
after committal of the case, the Special Court shall frame charge against the
appellant. Obviously so, because it is for the Special Court to decide
regarding the action to be taken next after hearing the parties as provided
under Section 227 of the Code of Criminal Procedure. Noticing the provisions of
Section 193 of the Code of Criminal Procedure and Section 14 of the 1989 Act
this Court observed that the Act contemplated only the trial to be conducted by
Special Court.
The
added reasons for specifying a Court of Session as a Special Court is to ensure speed for such trial.
Thus the Court of Session is specified to conduct a trial and no other court
can conduct the trial of offences under the Act. The legislative intent was to
ensure that the offences under the Act were tried by Special Court and Court of Session was specified
as a Special Court under Section 14 of the 1989 Act.
Even after being so specified as a Special Court the Court of Session continues to be essentially a Court of
Session and its designation as a Special Court did not denude it of its character or even powers as a
Court of Session. The trial in such a Court can be conducted only in the manner
provided in Chapter XVIII of the Code of Criminal Procedure which contains a fasciculus
of provisions for trial before a Court of Session. This Court then observed :-
"10. Section 193 of the Code has to be understood in the aforesaid
backdrop. The section imposes an interdict on all Courts of Session against
taking cognizance of any offence as a court of original jurisdiction. It can
take cognizance only if "the case has been committed to it by a
Magistrate", as provided in the Code. Two segments have been indicated in
Section 193 as exceptions to the aforesaid interdict. One is, when the Code
itself has provided differently in express language regarding taking of
cognizance, and the second is when any other law has provided differently in
express language regarding taking cognizance of offences under such law. The
word "expressly" which is employed in Section 193 denoting those
exceptions is indicative of the legislative mandate that a Court of Session can
depart from the interdict contained in the section only if it is provided
differently in clear and unambiguous terms. In other words, unless it is
positively and specifically provided differently no Court of Session can take
cognizance of any offence directly, without the case being committed to it by a
Magistrate.
11.
Neither in the Code nor in the Act is there any provision whatsoever not even
by implication that the specified Court of Session (Special Court) can take
cognizance of the offence under the Act as a court of original jurisdiction
without the case being committed to it by a Magistrate. If that be so, there is
no reason to think that the charge-sheet or a complaint can straight away be
filed before such Special
Court for offences
under the Act. It can be discerned from the hierarchical settings of criminal
courts that the Court of Session is given a superior and special status. Hence
we think that the legislature would have thoughtfully relieved the Court of
Session from the work of performing all the preliminary formalities which
Magistrates have to do until the case is committed to the Court of
Session." The same view was reiterated in Vidyadharan (supra).
This
Court concluded by observing :-
"20.
Hence, we have no doubt that a special court under the 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 and another vs. State of A.P. : (2000) 2 SCC 504 in above terms with which we are
in respectful agreement. The sessions court in the case at hand, undisputedly
has acted as one of original jurisdiction, and the requirements of section 193
of the Code were not met." In view of the aforesaid decisions of this
Court it could not be contended before us that the Special Judge had
jurisdiction to entertain the complaint directly and to issue process after
taking cognizance without the case being committed to it by a competent
Magistrate. The question is no longer res integra and, therefore, it must he
held that the learned Special Judge in the instant case erred in entertaining a
complaint filed before it and in issuing process after taking cognizance
without the case being committed to it for trial by a competent Magistrate.
Though the High Court has quashed the proceeding on a different ground
altogether, we are satisfied that the impugned order of the Special Judge
deserves to be set aside so far as it related to its taking cognizance of an
offence under the 1989 Act, and issuing process on the basis of the complaint
directly made before it by the complainant.
The
next question which survives consideration is whether the learned Special Judge
was justified in taking cognizance under Section 7(1)(d) of the Protection of
Civil Rights Act. The High Court held that the utterance imputed to respondent
No.1 did not attract the provisions of Section 7(1)(d) of the Protection of
Civil Rights Act. To attract the said provision it had to be shown that the
words so uttered had the effect of insulting the appellant on the ground of
"untouchability" which is not the case. There was no justification
for the submission that the words allegedly uttered by respondent No.1
encouraged his audience to practise untouchability or that respondent No.1 practised
untouchability.
The
appellant was neither insulted nor attempted to be insulted on the ground of untouchability.
Therefore, the provisions of Section 7(1)(d) of the Protection of Civil Rights
Act were not attracted.
Learned
counsel for the appellant did not advance any argument challenging the above
finding of the High Court. We have also seriously considered the matter and we
are satisfied that the High Court was right in coming to the conclusion that
Section 7(1)(d) of the Protection of Civil Rights Act is not attracted in the
facts and circumstances of this case. Assuming, respondent No.1 uttered the
words imputed to him, by no stretch of imagination it can be concluded that by
uttering those words he either insulted or attempted to insult the appellant on
the ground of untouchability.
In the
result this appeal is dismissed. However, it will be open to the appellant, if
so advised, to file a complaint before a competent Magistrate who shall
consider the complaint on its merit and then proceed in accordance with law.
The learned Special
Court as well as the
High Court have made certain observations touching on the merit of the
controversy. We make it clear that in case a complaint is filed by the
appellant before a competent Magistrate, he shall proceed to consider the
matter in accordance with law uninfluenced by any observation made either by
the learned Special Judge or by the High Court.
Nothing
said in this judgment also shall be construed as expression of opinion on the
merit of the case.
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