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AMAN CHAUDHARY, J. –

1. This order will dispose of the petitions bearing CRM-M-42358-2017 wherein a challenge is laid to the complaint No.433/7.6.2011/7.8.2011 and the summoning order dated 10.01.2017 and CRM-M-2223-2020, challenging the order dated 08.11.2016 passed by the learned Special Court, Rohtak, in the aforesaid complaint. For the sake brevity, the facts are being taken from CRM-M-42358-2017.

2. Briefly put, on 04.02.2011 at about 4.00 pm, complainant- Ram Mehar alongwith one Vir Bhan s/o Rupa Ram went to the office of D.E.E.O., Rohtak to enquire regarding the sanction of grant but at that time the DEEO was not present, so they approached the dealing clerk Nar Singh and requested him to tell the status of sanctioning of grant. He did not attend to the complainant by saying that he had no time. When the complainant requested to attend to them properly, he gave them a threat to leave the office. He became very angry and insulted the complainant badly by calling him “Kameen, Dhed, Chamarda” and so many other abuses relating the posts in all departments that had made them senior to the upper class. He further shouted that the complainant is “Kameen, Dhed” and had no knowledge at all and government had made them Panch, Sarpanch by reserving their seats. When he shouted upon the complainant, Vir Bhan, Mahabir Singh and Joginder Singh were also present. They requested him not to shout upon the complainant but he did not pay any heed. The complainant reported the matter to SP Rohtak, DSP, Rohtak but no action had been taken. With these assertions, the complaint was filed by the complainant.

3. To prove his case, the complainant stepped into the witness box as CW1 and also examined four more witnesses. After taking into consideration the certificate of scheduled caste, Ex.P8, and the statements of the witnesses, the petitioner has been summoned to face the trial for the offence punishable under Section 3(i)(x) of the Act.

4. Learned counsel for the petitioner submits that the summoning order was passed on 10.01.2017 by the Chief Judicial Magistrate, who as per Section 14 of the amended Act, that came into effect on 01.01.2016, had no power in terms thereof, as the power lay only with the Sessions Judge, being the Special Court. He places reliance on the judgment of Hon'ble The Supreme Court of India in the case of Gangula Ashok and another vs. State of A.P. (2000) 2 Supreme Court Cases 504.

5. On the other hand, learned counsel for respondent No.2 has made a reference to the order dated 08.11.2016, passed by the Special Judge, appended by the respondent as Annexure R-2/4 with the reply to submit that the case was rightly referred to the learned Sessions Judge, as the complaint was filed prior to the amendment of the Act. In view of the specific allegations against the petitioner made in the complaint, he has been rightly summoned by the learned trial Court as per the procedure applicable. He, thus prays for the dismissal of the present petitions.

6. Heard.

7. At the outset, it may be accentuated that, the date of alleged occurrence in the present case is 02.04.2011; the Magistrate took cognizance on 10.01.2017; the petitioner challenged the complaint and the summoning order, under Section 482 CrPC, which was dismissed by this Court, finding no merit in the petition, vide order dated 16.03.2017; the present petitions were again filed on 06.11.2017, after the dismissal of the SLP filed by the petitioner against the aforesaid order of this Court, but in view of the contention raised that cognizance of offence can only be taken by the Special Court under Section 14 of the Act as per amendment in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, permission was granted by Hon’ble The Supreme Court to file a fresh petition on the above ground. However, in the present petition the complaint has also been challenged. Ever since, the complainant-respondent is awaiting commencement of the trial.

8. At first, it is imperative to refer to the order dated 08.11.2016 passed by learned Judge, Special Court, Rohtak, whereby with the following observations, the case was sent to the learned Sessions Judge:-

“Today the case was fixed for consideration. On perusal of case, file it has appeared that the present complaint was filed on 07.06.2011, whereas, the Amendment Act, 2015 (1 of 2016) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is in force from 26.01.2016. The Amendment Act, 2015 does not anywhere provides that it shall applicable with retrospective effect. Further more Article 20(1) of the Constitution specifically stipulates that the law in force at the time of commission of the offence is applicable in respect of conviction for offences. It is specifically clear that the old act is applicable on the present complaint. In the Amendment Act of 2015, it has specifically mentioned that Section 14, that the Special court so established shall have power to directly take cognizance of offences under the Act, whereas in the Old Act, no such proviso was addressed with Section 14 of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The committal of a case by the Court of learned Magistrate to the Court of Sessions is by way of provisions under Section 209 and 323 Cr.P.C. It is further noted that the present complaint is sent by learned Magistrate without following the procedure as provided under Section 209 and 323 of Cr.P.C., whichever is applicable. So, the case file be submitted before learned District and Sessions Judge, Rohtak for appropriate orders, in this regard. Learned counsel for the complainant is hereby directed to appear before the Court of learned District & Sessions Judge, Rohtak for 10.11.2016. Ahlmad of this Court is hereby directed to send this file well on time in the Court of learned District and Sessions Judge, Rohtak.”(emphasis supplied)

9. Upon the aforesaid, the learned Sessions Judge, Rohtak vide order dated 10.11.2016, has specifically recorded that “since the occurrence pertains much prior to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, (Amended), 2015, effective from 26.01.2016, therefore, the reference made by learned Additional Sessions Judge, Rohtak is accepted and matter is remitted back to the Court of learned Chief Judicial Magistrate, Rohtak for today itself, for its disposal in accordance with law.”

10. It is thereupon that the learned Chief Judicial Magistrate vide the impugned order dated 10.01.2017 passed the summoning order, the operative portion thereof reads thus:-

“From the document i.e. Schedule Caste certificate of complainant Ex.P8 placed on record by the complainant, it is crystal clear that the complainant belongs to Scheduled Caste. From the testimonies of complainant and other material witnesses, it is also clear that accused abused the complainant by reference to his case and made derogatory remarks with intent to humiliate him being a member of Scheduled Caste within public view. Thus, there is sufficient material to summon the accused under Section 3(i)(x) of SC/ST Act. Hence, the accused is ordered to be summoned to face trial under Section 3(i)(x) of SC/ST Act for 25.01.2017 on filing of copy of complaint etc.”

11. Aggrieved petitioner, filed CRM-M-9013-2017 under Section 482 Cr.PC before this Court, which was dismissed on merits vide order dated 16.03.2017, by observing that “from the perusal and appreciation of documents i.e. Annexures P-2 to P-6, it emerges that the view taken by the learned summoning Court does not suffer from any illegality or perversity. Rather the learned counsel for the petitioner has failed to refer to any evidence or circumstances, which has not been considered and appreciated in its right perspective.”

12. The petitioner took up the said order before Hon’ble The Supreme Court of India by filing SLP(Crl.) No.3555 of 2017, which was dismissed vide order dated 27.10.2017, by passing the order that reads thus:

“Notice in this special leave petition was issued taking note of the contention of the learned counsel for petitioner that after the amendment in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, vide Amendment Act, 1/2016 dated 01.01.2016, cognizance of the offence is only taken by the Special Court. This provision to this effect is made only to Section 14 therein. It is pointed out by learned counsel for the complainant that no such ground was taken before the High Court. Though this position is accepted by the learned counsel for the petitioner, it is contended that this ground can be taken at any time.

Having regard to the aforesaid, we permit the petitioner to file a fresh petition in the High Court under Section 482 of the Code of Criminal Procedure (Cr.P.C.) raising the aforesaid facts and once such a petition is filed within two weeks, the same shall be considered by the High Court on its own merits.

The petitioner shall not be arrested for a period of two weeks.

The special leave petition is, accordingly, dismissed.”

13. In view of the above, now in the present petitions, the only issue that falls for consideration of this Court is regarding the sustainability of the order of taking cognizance by the learned Magistrate after the amendment in the Act.

14. In an endeavour to evaluate the aforesaid issue, a profitable reference is being made to the law as enunciated in an exhaustive pronouncement in the case of Shantaben Bhurabhai Bhuriya vs. Anand Athabhai Chaudhari & Ors., 2021 SCC OnLine SC 974, wherein precisely as in the present case, the learned Magistrate had taken cognizance and issued process vide order 15.02.2017, though on a police report, for an offence that was alleged to have been committed on 06.09.2013, Hon’ble The Supreme Court of India held that merely because now further additional powers have been given to the Special Court also to take cognizance of the offences under the Atrocities Act, the cognizance taken by the Magistrate after the amendment in the Act would not vitiate the proceedings. The paras as they relate to the above read thus:

“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.”

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.

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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 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.”

15. It would be apposite to also make a reference to the explicit exposition of law in the case of Pradeep S. Wodeyar vs The State of Karnataka, 2021 SCC OnLine SC 1140, wherein Hon’ble The Supreme Court of India, observed and held thus:

“25. Before we address the merits of this contention, we find it imperative to refer to the judgments of this Court on the interpretation of Section 193 CrPC. The decision of a two judge Bench in Gangula Ashok v. State of AP 15 arose out of a complaint lodged under the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 against the appellants. The police filed a charge-sheet upon investigation directly before the Sessions Court. The Sessions Court is designated as a Special Court for trial of offences under the Act. Charges were framed by the Special Judge. The High Court was moved for quashing the charges and the charge-sheet. The Single Judge held that the Special Judge had no jurisdiction to take cognizance of the offence under the Act without the case being committed to it and accordingly set aside the proceedings. The High Court directed the charge- sheet and connected papers to be returned to the police officer who was directed to present it before the JMFC for the purpose of committal and the Special Court was directed on committal to frame appropriate charges. The order of the High Court was questioned in appeal before this Court. The first issue which arose was whether the Special Judge could have taken cognizance ‘straightway without the case being committed’ by the Magistrate. The Special Court under the SC and ST Act was a Court of Sessions, having regard to Section 14 of the Act. After setting out the provision of Section 14, Justice KT Thomas observed that the Special Court under the Act was constituted only for the ‘speedy trial’ of offences which is different from an ‘inquiry’..

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32. It may be noted that Section 14 of the SC and ST Act has been substituted by Act 1 of 2016 with effect from 26 January 2016. The proviso to Section 14(1), following the amendment, stipulates that the Special Court shall have the power to directly take cognizance of offences under the Act. Recently, a Division Bench of this Court in Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari 23 interpreted the proviso to Section 14 of the SC and ST Act. In that case, FIR was filed for offences punishable under the SC/ST Act and provisions of the Penal Code. The Judicial Magistrate took cognizance of the offences and issued process under Section 204 and then committed the case to the Special Court. An application was filed before the High Court seeking to quash the FIR and summons order. It was contended that in view of the proviso to Section 14 of the SC and ST Act, the Magistrate had no power to take cognizance of offences under the Act. The High Court allowed the application and quashed the proceedings on the ground that the proviso to Section 14 ousts the jurisdiction of the Magistrate to take cognizance. On appeal, a two judge bench of this Court set aside the judgment of the High Court by holding that the proviso to Section 14 of the SC and ST Act does not oust the power of the Magistrate to take cognizance, but it provides the power to take cognizance to the Special Court in addition to the Magistrate,. While reversing the judgment of the High Court, Justice M R Shah, speaking for the two judge Bench, observed:

(i) Section 14 does not take away the jurisdiction of the Magistrate to take cognizance and commit the case to the Special Court for trial. The words used in amended Section 14 are “Court so established or specified shall have power to directly take cognizance of the offences under this Court”. The word, ‘only´ is missing; and

(ii) In view of the provisions of Section 460 CrPC, the act of the Magistrate in taking cognizance could at the highest be held to be irregular and would not vitiate the proceedings.

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43. The test established for determining if there has been a failure of justice for the purpose of Section 465 is whether the irregularity has caused prejudice to the accused. No straitjacket formula can be applied. However, while determining if there was a failure of justice, the Courts could decide with reference to inter alia the stage of challenge, the seriousness of the offence charged, and apparent intention to prolong proceedings. It must be determined if the failure of justice would override the concern of delay in the conclusion of the proceedings and the objective of the provision to curb the menace of frivolous litigation.”

16. The findings as summarised in the aforesaid judgment, as relatable to the present case read thus:

“(i) xx xx

(ii) The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465 CrPC is applicable to interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 CrPC;

(iii & iv) xx xx

(v)It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no ‘failure of justice’ under Section 465 CrPC is proved. This irregularity would thus not vitiate the proceedings in view of Section 465 CrPC;”

17. In the case of Shantaben Bhurabhai Bhuriya (supra) it was observed that, “The words used in the provision 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”. Further it was observed that, “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 Atrocities against the members of the Scheduled Castes and Scheduled Tribes. Further observed was that, “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”. Therefore, while considering the object and purpose of insertion of proviso to Section 14, it was held that, it does not take away jurisdiction of the Magistrate to take cognizance, thus, it cannot be said that entire criminal proceedings stand vitiated and can be quashed and set aside solely on the ground that cognizance has taken of the offences by the Magistrate and thereafter the case has been committed to Special Court established for the purpose of providing for speedy trial for which proviso to Section 14 confers powers upon the Special Court also to directly take cognizance of the offences under the Atrocities Act.

18. In Santosh Dev vs. Archna Guha, 1994 SCC (2) 420, Hon’ble The Supreme Court of India held, “That any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself, because such frequent interference by superior Court at the interlocutory stages tends to defeat the ends of Justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system.”

19. Still further, it was held in Shantaben Bhurabhai Bhuriya (supra) that, “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.” Observed that, “Assuming for the sake of arguments also that the procedure adopted was irregular, in that why should the victim who belongs to Schedule Castes and Scheduled Tribes community be made to suffer.”

20. In Pradeep S. Wodeyar (supra), Hon’ble The Supreme Court explicating the concept of cognizance observed that, “It is evident from the discussion in Kishun Singh (supra) and Dharam Pal (supra) that in view of the provisions of Section 193 CrPC, cognizance is taken of the offence and not the offender. Thus, the Magistrate or the Special Judge does not have the power to take cognizance of the accused. The purpose of taking cognizance of the offence instead of the accused is because the crime is committed against the society at large. Therefore, the grievance of the State is against the commission of the offence and not the offender. The offender as an actor is targeted in the criminal procedure to provide punishments so as to prevent or reduce the crime through different methods such as reformation, retribution and deterrence. Cognizance is thus taken against the offence and not the accused since the legislative intent is to prevent crime. The accused is a means to reach the end of preventing and addressing the commission of crime.” As further observed that “the object of Chapter XXXV of the Cr.PC is not only to prevent the delay in the conclusion of proceedings after the trial has commenced or concluded, but also to curb the delay at the pre-trial stage and to further the constitutionally recognized principle of speedy trial.”

21. The case of Gangula Ashok (supra), being distinguishable inasmuch as, the charge sheet was submitted by the police directly before the Court of Sessions, such being the situation, the High Court thus, had held that the Special Judge had no jurisdiction to take cognizance of the offence under the Act without the case being committed to it and accordingly set aside the proceedings. It directed the charge-sheet and connected papers to be returned to the police officer who was directed to present it before the Judicial Magistrate 1st Class, for the purpose of committal and the Special Court was directed on committal to frame appropriate charges, which order was upheld by Hon’ble The Supreme Court of India.

22. Now reverting to the case at hand, it is vital to note that for an offence alleged to have been committed on 02.04.2011, learned Special Judge vide order dated 08.11.2016 observed that the amended Act, does not provide that it shall applicable with retrospective effect. Thus, concluded that the un-amended Act would be applicable to the said complaint. The case was referred to the learned Sessions Judge with these observations that the power to directly take cognizance of offences by the Special Court having been conferred by the amended Act, upon which, with similar findings that since the occurrence pertains much prior to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, (Amended), 2015, effective from 26.01.2016, the reference made, was accepted by the learned Sessions Judge and the matter was remitted to the Court of learned Chief Judicial Magistrate, Rohtak, for its disposal in accordance with law, whereafter the learned Magistrate had taken cognizance vide order dated 10.01.2017.

23. Bearing the facts and circumstances of the case in mind and the issue having been crystallized in the afore referred authoritative pronouncements, that the cognizance taken by the Magistrate after the amendment in the Act, would not vitiate the proceedings, the present petitions deserve to be dismissed.

24. Accordingly, the present petitions being bereft of merit, are hereby dismissed.

25. The observations made hereinabove are only for the purpose of adjudication of the present case and in no manner be construed as an expression of opinion on the merits of the case.

26. A photocopy of the judgment be placed on the file of the connected case.

Petition dismissed.

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