Shantaben Bhurabhai Bhuriya vs Anand Athabhai Chaudhari on 26 October, 2021


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Supreme Court of India

Shantaben Bhurabhai Bhuriya vs Anand Athabhai Chaudhari on 26 October, 2021

Author: M.R. Shah

Bench: M.R. Shah, A.S. Bopanna

                                                                              REPORTABLE

                                      IN THE SUPREME COURT OF INDIA
                                     CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO. 967 OF 2021


                         Shantaben Bhurabhai Bhuriya                         …Appellant(s)


                                                       Versus


                         Anand Athabhai Chaudhari & Ors.                   …Respondent(s)



                                                  JUDGMENT

M.R. SHAH, J.

1.0. 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
Signature Not Verified
Atrocities) Act, 1989 (hereinafter referred to as the “Atrocities
Digitally signed by R
Natarajan
Date: 2021.10.26
16:59:52 IST
Reason:

Act”) and also quashing and setting aside the order of
issuance of summons dated 15.02.2017 passed by the

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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.

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

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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

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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

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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.

2.5. It was mainly contended on behalf of the accused that the
learned Magistrate had no authority to take cognizance of
the offences under the provisions of the Atrocities Act and
only Special Court can take cognizance of the offences. It
was submitted that the Court of learned Magistrate is not a
Special Court under the provisions of the Atrocities Act. It
was further submitted that the impugned FIR is nothing but a
counterblast to the complaint filed against the husband of the
complainant and others for the incident happened on
06.09.2013 wherein the police was assaulted. It was also
submitted on behalf of the accused that there was a gross
delay in lodging the FIR / complaint on 15.11.2013 for the
offences alleged to have been committed on 06.09.2013 and
the delay has not been explained. It was further submitted
that at the relevant time Police Officers were discharging
their official duties and therefore, before initiation of any
proceedings, a sanction under Section 197 of the Code of
Criminal Procedure was required and in absence of such
sanction from the competent authority, no prosecution could
have been launched / continued against them.

2.6. The prayer to quash the FIR and the order issuing the
summons on the aforesaid ground was opposed by the
learned counsel for the original complainant. Referring to
Section 14 of the Atrocities Act, it was submitted that the

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Special Court has power “only for trial” and the Special Court
cannot take cognizance directly. It was further submitted that
after filing of the summary report, the learned Magistrate
directed further investigation, whereupon, Dy.Sp submitted
summary report after investigation submitting that the
offence has been made out.

2.7. In response, it was submitted on behalf of the accused that
in view of the amended Section 14 of the Atrocities Act, the
Special Court can take direct cognizance of the offence and
therefore, now learned Magistrate is not empowered to take
cognizance directly.

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

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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.

3.0. Shri Nikhil Goel, learned counsel for the appellant has
vehemently submitted that High Court has misinterpreted
and misconstrued the amendment to Section 14 of the
Atrocities Act. It is submitted that as per the High Court, after
amendment to Section 14 of the Atrocities Act, cognizance
can only be taken by the learned Special Judge/Court and
therefore, taking cognizance and issuance of summons by
the learned Magistrate can be said to be prohibited by law
and consequently quashing the criminal proceedings / FIR
on the aforesaid ground is erroneous. It is submitted that
apart from the fact that the amendment to Section 14 of the
Atrocities Act was brought in the year 2016, second proviso
to Section 14 (as amended) cannot be read as a standalone
provision and must be read with the purpose it seeks to
achieve. It is submitted that by inserting second proviso to
Section 14, the purpose it seeks to achieve is providing for
speedy trial. It is submitted that amendment does not
exclude the provision of Code of Criminal Procedure but only
clarify the position that the bar of Section 193 of the Code of
Criminal Procedure would not be ipso facto applicable. It is
submitted that it gives a choice to the Investigating Agency to
file the report either before the Magistrate who will commit

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the matter to the Court of Special Judge under Section 209
of the Code of Criminal Procedure or to file it directly before
the Special Court. It is submitted that interpretation given by
the High Court would add premium to the alleged criminal
actions of an accused who would not even be tried for
serious offences merely because a final report has been
forwarded to a wrong forum.

3.1. It is submitted that unlike the old Code, Section 209 of the
Code of Criminal Procedure, 1973 does not give any power
of inquiry to the Magistrate and the Magistrate is duty bound
to commit a matter for trial to the Court of Session once it is
found triable by the Court of Session.

3.2 It is submitted that as such and it appears that amendment
was required in view of the interpretation given to
unamended Section 14 in the judgment of this Court in the
case of Rattiram and Others vs. State of Madhya
Pradesh
reported in (2012) 4 SCC 516.

3.3. It is submitted that even otherwise the irregularity of sending
a final report to a wrong Court can be said to be merely an
irregularity which does not vitiate the proceedings
considering Section 460(e) of the Code of Criminal
Procedure. It is submitted that the rationale behind Section
460(e)
is that the entry of an accused in our criminal
jurisprudence only happen after a cognizance is taken and
his first right of objection is contemplated only at the stage of
framing of the charge (subject to the provisions of bail and

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search and seizure). It is submitted that the accused is not
affected by the forum which takes cognizance and issues
summons to him so long as he gets to agitate his rights
before the correct forum. It is submitted that therefore, the
impugned judgment and order passed by the High Court
overlooks Section 460(e) of the Code of Criminal Procedure.

3.4. It is submitted that the law laid down relating to cognizance
must relate back to the date of commission of the offence
which in this case is 06.09.2013. It is submitted that
cognizance is to be taken of the “offence” and not the
offender. It is submitted that therefore, any amendment
which is in the nature of substantive right would only be
prospective unless expressly stated to be retrospective. It is
submitted that if Section 14 of the Atrocities Act is to be
interpreted to give a substantive right to the accused, then
the date of offence becomes relevant. It is submitted that
however if Section 14 of the Atrocities Act is interpreted to be
only procedural not affecting the right of an accused then the
impugned judgment is ipso facto incorrect because it has
scuttled the entire proceedings at the inception on the
ground of violation of Section 14 of the Atrocities Act.

3.5. It is further submitted that even the finding recorded by the
High Court that there was a delay of two months in lodging
the FIR is contrary to the material on record. It is submitted
that the alleged offence is committed on 06.09.2013 and in
fact earlier an attempt was made in getting FIR registered on
07.09.2013 i.e. on the next day but the FIR was not lodged

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as the accused were Police Officers and thereafter, the
complainant was constrained to file complaint before the
learned Magistrate which was filed on 13.09.2013 and only
after an order dated 26.09.2013 of the learned Magistrate,
an FIR was registered. It is submitted that therefore, as such
there was no delay at all in lodging the FIR and therefore,
the finding on delay is erroneous and without merit.

3.6. It is further submitted by Shri Nikhil Goel, learned counsel for
the complainant that even bar under Section 197 of the Code
of Criminal Procedure would not apply to the acts done
which are not part of the official duty. It is submitted that this
is a case of patent abuse of power. It is submitted that even
the issue of sanction is subject to the test of prejudice and
failure of justice. It is submitted that even assuming the
provisions of Section 197 applies, the High Court ought to
have directed the authorities to take sanction and then
proceed instead of completely quashing the case. Making
above submissions, it is prayed to quash and set aside the
impugned judgment and order passed by the High Court and
direct the learned Trial Court to dispose of the trial in time
bound manner.

4.0. Shri Aniruddha P. Mayee, learned counsel appearing on
behalf of the State has supported the appellant.

5.0. Though served, nobody appeared on behalf of the private
respondent.

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6.0. Heard learned counsel appearing on behalf of the appellant
and learned counsel appearing on behalf of the State.

7.0. By the impugned judgment and order, the High Court has
quashed and set aside the 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 on the ground that (1) in the present case
cognizance of the charge-sheet has been taken by the
learned Magistrate and thereafter the case was committed to
the learned Court of Session / Special Court and therefore,
in view of second proviso to Section 14 of the Atrocities Act,
cognizance could not be taken by the learned Magistrate; (2)
That there was a delay in lodging the complaint for which
there is no explanation given for delay of such complaint; (3)
before launching the prosecution, the sanction under Section
197
of the Code of Criminal Procedure has not been
obtained of the competent authority.

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

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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.”

8.2. This Court had an occasion to consider Section 14 pre-

amendment in the case of Rattiram and Ors (Supra). In
the case before this Court which was pre-amendment, the
learned Sessions Court straightway took the cognizance.

This Court considered Section 193 of the Code of Criminal
Procedure and formulated the questions whether the

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Special Court as constituted under the Atrocities Act is a
Court of Sessions; and whether there is a constitutional
provision in the Act enabling the said Court to take
cognizance. This Court after taking note of Section 193 of
the Code of Criminal Procedure observed that on plain
reading of Section 193 of the Code of Criminal Procedure, it
is clear that no Court of Session can take cognizance of
any offence as a Court of original jurisdiction except as
otherwise expressly provided by the Code or by any other
law for the time being in force. At this stage, it is required to
be noted that pre-amendment to Section 14 there was no
provision permitting / authorizing the learned Court / Special
Court to take cognizance of offences under the Atrocities
Act. Therefore, this Court formulated the aforesaid
questions. At this stage, it is required to be noted that
perceiving divergent and contradictory views as regards the
effect and impact of not committing an accused in terms of
Section 193 the Code of Criminal Procedure in cases where
charge-sheet is filed under Section 3(1)(x) of the Atrocities
Act and cognizance is directly taken by the Special Judge
under the Act, a two-Judge Bench thought it fit to refer the
matter to a larger Bench and on the basis of the said
reference, the matter was placed before the Bench
consisting of three Hon’ble Judges. While referring the
matter to the Larger Bench three conflicting decisions one
in the case of State of MP vs. Bhooraji and Ors. reported
in (2001) 7 SCC 679, in the case of Moly and Anr. vs
State of Kerala
reported in (2004) 4 SCC 584 and in the
case of Vidyadharan vs. State of Kerala reported in

Page 13 of 29
(2004) 1 SCC 215 were noted. In the case of Bhooraji
(supra), it was held by this Court taking aid of Section
465(1)
of the Code that when trial has been conducted by
the Court of competent jurisdiction and a conviction has
been recorded on proper appreciation of evidence, the
same cannot be erased or effaced merely on the ground
that there had been no committal proceeding and
cognizance was taken by the Special Court, inasmuch as
the same does not give rise to failure of justice. On the
other hand, in the case of Moly (supra), it was held that
conviction by the Special Court is not sustainable if it has
suo motu entertained and taken cognizance of the
complaint directly without the case being committed to it
and, therefore, there should be retrial or total setting aside
of the conviction, as the case may be. After considering the
object and purpose of committal and after taking into
consideration Section 207 (pre-amendment), 207-A (pre-
amendment) and 209 of the old Code of Criminal
Procedure, 1973, it is observed and held by this Court that
while committing the case to the Court of Session under
Section 209 of the Code of Criminal Procedure, in a case
where the offence is triable exclusively by the Court of
Session, the limited jurisdiction conferred on the Magistrate
is only to verify the nature of the offence and thereafter if
the learned Magistrate is satisfied that the offences are
triable exclusively by the Court of Session, he shall commit
the case to the Court of Sessions. While holding so, this
Court considered the relevant provisions under the old
Code- Code
of Criminal Procedure, 1898 and the relevant

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provisions of Code of Criminal Procedure, 1973 and after
having noted that there is a sea of difference in the
proceeding for commitment to the Court of Session under
the old Code and under the existing Code, it is observed
that there is nothing in Section 209 of the Code to even
remotely suggest that any of the protections as provided
under the old Code has been telescoped to the existing
one. In paras 53 to 58, it is observed and held as under:

“53. On a bare perusal of the above quoted
provisions, it is plain as day that an exhaustive
procedure was enumerated prior to commitment of
the case to the Court of Session. As is evincible,
earlier if a case was instituted on a police report,
the magistrate was required to hold enquiry,
record satisfaction about various aspects, take
evidence as regards the actual commission of the
offence alleged and further was vested with the
discretion to record evidence of one or more
witnesses. Quite apart from the above, the
accused was at liberty to cross-examine the
witnesses and it was incumbent on the magistrate
to consider the documents and, if necessary,
examine the accused for the purpose of enabling
him to explain any circumstances appearing in the
evidence against him by the prosecution and
afford the accused an opportunity of being heard
and if there was no ground for committing the
accused person for trial, record reasons and
discharge him.

54. Thus, the accused enjoyed a substantial
right prior to commitment of the case. It was
indeed a vital stage. But, in the committal
proceedings in praesenti, the magistrate is only
required to see whether the offence is exclusively
triable by the Court of Session. Mr. Fakhruddin,
learned senior counsel, would submit that the use
of the words “it appears to the magistrate” are of

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immense signification and the magistrate has the
discretion to form an opinion about the case and
not to accept the police report.

55.To appreciate the said submission, it is
apposite to refer to Section 207 of the 1973 Code
which lays down for furnishing of certain
documents to the accused free of cost. Section
209(a)
clearly stipulates that providing of the
documents as per Section 207 or Section 208 is
the only condition precedent for commitment. It is
noteworthy that after the words, namely, “it
appears to the Magistrate”, the words that follow
are “that the offence is triable exclusively by the
Court of Session”. The limited jurisdiction
conferred on the magistrate is only to verify the
nature of the offence. It is also worth noting that
thereafter, a mandate is cast that he “shall
commit”.

56.Evidently, there is a sea of difference in the
proceeding for commitment to the Court of
Session under the old Code and under the
existing Code. There is nothing in Section 209 of
the Code to even remotely suggest that any of the
protections as provided under the old Code has
been telescoped to the existing one

57.It is worth noting that under the Code of
Criminal Procedure, 1898, a full-fledged
Magisterial enquiry was postulated in the
committal proceeding and the prosecution was
then required to examine all the witnesses at this
stage itself. In 1955, the Parliament by Act 26 of
1955 curtailed the said procedure and brought
in Section 207A to the old Code. Later on, the Law
Commission of India in its 41st Report,
recommended thus:-

18.19. After a careful consideration we are
of the unanimous opinion that committal
proceedings are largely a waste of time
and effort and do not contribute

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appreciably to the efficiency of the trial
before the Court of Session. While they
are obviously time- consuming, they do
not serve any essential purpose. There
can be no doubt or dispute as to the
desirability of every trial, and more
particularly of the trial for a grave offence,
beginning as soon as practicable after the
completion of investigation. Committal
proceedings which only serve to delay this
step, do not advance the cause of justice.

The primary object of protecting the
innocent accused from the ordeal of a
sessions trial has not been achieved
in practice; and the other main object of
apprising the accused in sufficient detail of
the case he has to meet at the trial could
be achieved by other methods without
going through a very partial and ineffective
trial rehearsal before a Magistrate. We
recommend that committal proceedings
should be abolished.

We have reproduced the same to accentuate the
change that has taken place in the existing Code.
True it is, the committal proceedings have not
been totally abolished but in the present
incarnation, it has really been metamorphosed
and the role of the Magistrate has been absolutely
constricted.

58. In our considered opinion, because of the
restricted role assigned to the Magistrate at the
stage of commitment under the new Code, the
non-compliance of the same and raising of any
objection in that regard after conviction attracts the
applicability of the principle of `failure of justice’
and the convict-appellant 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. The concept of fair
trial and the conception of miscarriage of justice

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are not in the realm of abstraction. They do not
operate in a vacuum. They are to be concretely
established on the bedrock of facts and not to be
deduced from procedural lapse or an interdict like
commitment as enshrined under Section 193 of
the Code for taking cognizance under the Act. It
should be a manifestation of reflectible and visible
reality but not a routine matter which has roots in
appearance sans any reality. Tested on the
aforesaid premised reasons, it is well nigh
impossible to conceive of any failure of justice or
causation of prejudice or miscarriage of justice on
such non-compliance. It would be totally
inapposite and inappropriate to hold that such
non-compliance vitiates the trial.”

That thereafter, after observing the above, this Court
overruled the objection relating to non-compliance of
Section 193 of the Code, which eventually has resulted in
directly entertaining and taking cognizance by the Special
Judge under the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act
, 1989 and observed that
it does not vitiate the trial and on the said ground alone, the
conviction cannot be set aside or there cannot be a direction
of retrial. That thereafter, this Court concluded that the
decision rendered in Moly (supra) and Vidyadharan
(supra) have not noted the decision in Bhooraji (supra), a
binding precedent, and hence they are per incuriam. At this
stage, it is required to be noted that in the said decision this
Court also considered in detail the concept of speedy trial
vis-a-vis right of a victim and has observed in paras 59, 63,
64 and 65 as under:

“59. At this juncture, we would like to refer to two
other concepts, namely, speedy trial and

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treatment of a victim in criminal jurisprudence
based on the constitutional paradigm and
principle. The entitlement of the accused to
speedy trial has been repeatedly emphasized by
this Court. It has been recognised as an inherent
and implicit aspect in the spectrum of Article 21 of
the Constitution. The whole purpose of speedy
trial is intended to avoid oppression and prevent
delay. It is a sacrosanct obligation of all
concerned with the justice dispensation system to
see that the administration of criminal justice
becomes effective, vibrant and meaningful. The
concept of speedy trial cannot be allowed to
remain a mere formality (see Hussainara Khatoon
and Ors. v. Home Secretary
,State of Bihar28,
Moti Lal Saraf v. State of Jammu & Kashmir29

and Raj Deo Sharma v. State of Bihar30).

63. In the case at hand, as is perceivable, no
objection was raised at the time of framing of
charge or any other relevant time but only
propounded after conviction. Under these
circumstances, the right of the collective as well
as the right of the victim springs to the forefront
and then it becomes obligatory on the part of the
accused to satisfy the court that there has been
failure of justice or prejudice has been caused to
him. Unless the same is established, setting
aside of conviction as a natural corollary or
direction for retrial as the third step of the
syllogism solely on the said foundation would be
an anathema to justice.

64. Be it noted, one cannot afford to treat the
victim as an alien or a total stranger to the
criminal trial. The criminal jurisprudence, with the
passage of time, has laid emphasis on
victimology which fundamentally is a perception
of a trial from the view point of the criminal as well
as the victim. Both are viewed in the social
context. The view of the victim is given due
regard and respect in certain countries. In respect
of certain offences in our existing criminal

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jurisprudence, the testimony of the victim is given
paramount importance. Sometimes it is perceived
that it is the duty of the court to see that the
victim’s right is protected. A direction for retrial is
to put the clock back and it would be a travesty of
justice to so direct if the trial really has not been
unfair and there has been no miscarriage of
justice or failure of justice.

65. We may state without any fear of
contradiction that if the failure of justice is not
bestowed its due signification in a case of the
present nature, every procedural lapse or interdict
would be given a privileged place on the pulpit. It
would, with unnecessary interpretative dynamism,
have the effect potentiality to cause a dent in the
criminal justice delivery system and eventually,
justice would become illusory like a mirage. It is
to be borne in mind that the Legislature
deliberately obliterated certain rights conferred on
the accused at the committal stage under the new
Code. The intendment of the Legislature in the
plainest sense is that every stage is not to be
treated as vital and it is to be interpreted to
subserve the substantive objects of the criminal
trial.”

This Court authoritatively concluded that the delay in
conclusion of the trial is direct nexus with the collective cry of
the society and the anguish and agony of an accused
(quaere a victim). It appears that observations made by this
Court in the case of Rattiram and Ors. (supra) gave rise to
amendment to Section 14 of the Act and it appears to avoid
consumption of time on procedural aspect on committing of
case by the Magisterial to Court of Session as per Section
209
of the Code of Criminal Procedure and to avoid any
further delay and to have speedy trial for the offences under
the Atrocities Act to prevent commission of offence of

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Atrocities against the members of the Scheduled Castes and
Scheduled Tribes, proviso to Section 14 came to be inserted
by Act 1 of 2016, by which, it has been provided that after
post amendment insertion of proviso to Section 14 the
Special Court so established for the purpose of providing for
speedy trial or specified shall (also) have power to directly
take cognizance of the offences under the Atrocities Act,
1989. Therefore, the object and purpose of insertion of
Section 14 is to provide speedy trial for the offences under
the Atrocities Act, 1989 and as observed herein above, to
avoid the delay which was taking place by the committal of
the offence by the learned Magistrate to the learned Special
Court / Sessions Court.

9. Considering the aforesaid legislative history which brought to
insertion of proviso to Section 14 of the Atrocities Act, by
which, even the Special Court so established or specified for
the purpose of providing for speedy trial the power to directly
to take cognizance of offences under the Atrocities Act, 1989,
the issue / question posed whether in a case where for the
offences under Atrocities Act, the cognizance is taken by the
learned Magistrate and thereafter the case is committed to
the Court of Sessions / Special Court and cognizance is not
straightway taken up by the learned Special Court / Court of
Session, whether entire criminal proceedings for the offences
under the Atrocities Act, 1989 can be said to have been
vitiated, as so observed by the High Court in the impugned
judgment and order ?

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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

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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

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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.

10. 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

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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.

11. 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.

12. 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

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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.

13. Even the impugned judgment and order passed by the High
Court quashing and setting aside the entire criminal
proceedings is unsustainable. The allegation against the
accused were for the offences under the Indian Penal Code
also along with for the offences under the Atrocities Act. By
the impugned judgment and order, the High Court has not
only quashed and set aside the proceedings under the
Atrocities Act but for the offences under the Indian Penal
Code
also, which is not permissible. We fail to appreciate
how the criminal proceedings for the offences under the
Indian Penal Code
could have been set aside by the High
Court while considering Section 14 of the Atrocities Act.

14. 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

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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.

15. 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

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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.

16. 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

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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.

………………………………….J.

                                                 [M.R. SHAH]



NEW DELHI;                                   ………………………………….J.
OCTOBER 26, 2021.                               [ANIRUDDHA BOSE]




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