Holding

A Special Court designated under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is essentially a Court of Session and may take cognizance of an offence only after the case has been committed to it by a magistrate under Section 193 of the Code of Criminal Procedure.

Summary

The appellants were convicted under Sections 3(1)(iii), 3(1)(v) and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. They appealed, contending that the Special Court – a Court of Session designated under the Act – could not take cognizance of the offence suo moto and register the complaint as a sessions case without a prior committal by a magistrate under CrPC Section 193. The Supreme Court examined whether the Special Court is a Court of Session for the purpose of Section 193 and whether the jurisdictional plea, though not raised before the lower courts, could be entertained as a pure question of law. It held that the Special Court remains a Court of Session and, like any other Court of Session, may take cognizance only after the case is committed to it by a magistrate. The Court also allowed the plea despite its non‑mention in the lower courts because it involved only a question of law. Consequently, the appeal was dismissed, leaving the convictions intact.

Issues considered

Can a Special Court designated under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, take cognizance of an offence without a prior committal by a magistrate under CrPC Section 193?
Does the fact that the jurisdictional plea was not raised before the lower courts preclude its consideration by the Supreme Court?
Does Section 5 of the Code of Criminal Procedure override the interdict of Section 193 in the context of Special Courts?
Is the Special Court, being a Court of Session, a court of original jurisdiction for offences under the Act?

Legislation cited

Code of Criminal Procedure, 1973s. 193, s. 227, s. 2(g), s. 4(2), s. 5
Constitution of Indias. Article 136
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 14, s. 2(1)(d), s. 3(1)(iii), s. 3(1)(v), s. 3(1)(x)

Subjects

Special CourtScheduled Castes and Scheduled Tribes (Prevention of Atrocities) ActCriminal Procedure CodeSection 193jurisdictioncognizanceoriginal jurisdictionsuo motocourt of session

Judgment

A MOL Y AND ANR.
v.
STATE OF KERALA

MARCH 23, 2004

B [DORAISWAMY RAJU AND ARIJIT PASA YAT, JJ.]

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
I 989-Section I 4-Special Court-Nature of-Held, Special Court is a Court
C of Session.

Code of Criminal Procedure, 1973-Section 193-Cognizance by Court
ofSession-Power of-Complaint filed directly before Special Court equivalent
to Court ofSession-Special Court taking cognizance of the complaint-Held,
not permissible-Cognizance can be taken only on committal of the case by
D the Magistrate-Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989-Section 14.

Code of Criminal Procedure, 1973-Section 2(g)-lnquiry and Trial- •
Difference between-Held, both are distinct-Inquiry is a forerunner to the
trial--Words and Phrases-Inquiry' and Trial.

Constitution of India-Article 136-New plea-Not raised before lower
courts-Entertaining of-Held, if new plea is a pure queslion of law, ii can
be entertained.

The appellants were convicted for offences under Sections 3(1)(iii),
3(l)(v) and 3(l)(x) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 by the trial court as well as the High
Court.

Preferring appeal before the Court, appellant contended that the
Special Court under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, being a Court of Session, could not have
suo moto entertained and registered the complaint as a sessions case. The
State opposed the case on the ground, inter alia, that the above plea was
not taken before the lower courts and should not be allowed to be raised ~ ·
for the first time before the Court.
346
MOL Y v. STA TE OF KERA LA 347
Disposing of the appeal, the Court A
HELD: I. It is for trial of the offences under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act that a particular
Court of Session in each district is sought to be specified as a Special Court:
Thus the Court of Session is specified to conduct a trial and no other Court
can conduct the trial of offences under the Scheduled Castes and Scheduled B
Tribes (Prevention of Atrocities) Act. Evidently the legislature wanted the
Special Court to be a Court of Session. Hence the particular Court of
Session, even after being specified as Special Court, would continue to be
essentially a Court of Session and designation of it as a Special Court would
not denude it of its character or even powers as a Court of Session. C
[350-B, D-E[

2. Subject to the provisions in other enactments all offences under
other laws shall also be investigated, inquired into, tried and otherwise
dealt with under the provisions of the Code of Criminal Procedure. This
means that if another enactment contains any provision which is contrary D
to the provisions of the Code of Criminal Procedure, such other provision
would apply in place of the particular provision of the Code of Criminal
Procedure. If there is no such contrary provision in other laws, then
provisions of the Code of Criminal Procedure would apply to the matters
covered thereby. [351-D-E[
E
A. R. Antulay v. Ramdas Sriniwas Nayak, [1984[ 2 SCC 500, referred
to.

3.1. Trial is distinct from inquiry and inquiry must always be a
forerunner to the trial. The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act contemplates only the trial to be conducted F
by Special Court. [350-C]

3.2. Neither in the Code of Criminal Procedure nor in the Scheduled
C.astes and Scheduled Tribes (Prevention of Atrocities) Act is there any
provision whatsoever, not even by implication, that the specified Court of G
Session (Special Court) can take cognizance of the offences under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) 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 the charge sheet or
a complaint straightaway be filed before such Special Court for offences
under the Scheduled Castes and Scheduled Tribes (Prevention of H
348 SUPREME COURT REPORTS [2004) 3 S.C.R.

A Atrocities) Act. 1351-BI

3.3. Section 5 of the Code of Criminal Procedure cannot be brought
in aid for supporting the view that the Court of Session specified under
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
obviate the interdict contained in Section 193 of the Code of Criminal
B Procedure so long as there is no provision in the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act empowering the Special
Court to take cognizance of the offence as a Court of original jurisdiction.
1352-AI

Directorate of Enforcement v. Deepak Mahajan, 119941 3 SCC 440,
C referred to.

3.4. A Special Court under the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act is essentially a Court of Session and
it can take cognizance of the offence when the case is committed to it by
D the Magistrate in accordance with the provisions of the Code of Criminal
Procedure. In other words, a complaint or a charge sheet cannot straight
away be laid down before the Special Court under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act. The Sessions Court •
is in the case at hand, undisputedly has acted as one of original jurisdiction,
and the requirements of Section 193 of the Code of Criminal Procedure
E were not met. 1352-E-FI

Gangula Asl10k and Anr. v. State of A.P., 120001 2 SCC 504 and
Vidyadharan v. State of Kera/a, 1200411 SCC 215, referred to.

4. Though the plea relating to jurisdiction was not raised before the
F lower Courts, in view of the undisputed position on facts and inasmuch
?.S a pure question of law without any factual controversy is involved,
interference on the facts the case is called for. 1352-GI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 730
of 1998.
G
From the Judgment and Order dated 11.2.1998 of the Kerala High
Court in Crl. A. No. 541 of 1994.
WITH
Crl. A. No. 731 of 1998.
H
~
MOLY v. STATE OF KERALA [PASAYAT . .I.] 349

C.N. Sree Kumar for the Appellants. A
,,-I
Ramesh Babu M.R. for the Respondent.

The Judgment of the Court was delivered .by

ARIJIT PASAYAT, J. These appeals involve identical issues and are B
taken up for disposal together.

Appellants faced trial for alleged commission of offences punishable
under Sections 3(1)(iii), 3(l)(v) and 3(1)(x) of the Scheduled Castes and
"' ~
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act').
The Trial Court found the appellants guilty and imposed sentences. Appeal c
before the High Court did not bring any relief to them. /

The primary stand taken in this appeal is that the Trial Court could not
have suo moto entertained and registered the complaint as a sessions case.

Learned counsel for the respondent-State supported the judgment of the D
courts below stating that this plea is taken for the first time in this Court and
was not taken before the Courts below.

Pristine question to be considered is whether the Special Judge could
take cognizance of the offence straight away without the case being committed
to him. If the Special court is a Court of Session, the interdict contained .in E
Section I 93 of the Code of Criminal Procedure, I 973 (for short the 'Code')
would stand in the way. It reads thus:

"193. Cognizance of offences by Courts of Session- Except as
otherwise expressly provided by this Code or by any other law for
the time being in force, no Court of Session shall take cognizance of F
any offence as a court of original jurisdiction unless the case has been
committed to it by a Magistrate under this Code."

So the first aspect to be considered is whether the Special Court is a
Court of Session. Chapter II of the Code deals with "Constitution of Criminal
Courts and Offices". Section which falls thereunder says that :
G

-
"there shall be, in every State, the following classes of criminal
courts, namely:

(i) Courts of Sessions;"
H
350 SUPREME COURT REPORTS 12004] 3 S.C.R.

A The other classes of criminal courts enumerated ihereunder are not
relevant in this case and need not be extracted. ' -
Section 14 of the Act Says that:

"for the purpose of providing for speedy trial, the State
B 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."
,. ....
So it is for trial of the offences-under the Act that a particular Court of
c Session in each district is sought to be specified as a Special Court. Though
the word 'trial' is not defined either in the Code or in the Act it is clearly
distinguishable from inquiry. The word 'inquiry' is defined in Section 2(g)
of the Code as 'every inquiry, other than a trial, conducted under this Code
by a Magistrate or court'. So the trial is distinct from inquiry and inquiry
must always be a forerunner to the trial. The Act contemplates only the trial
D to be conducted by the Special Court. The added reason for specifying a
Court of Session as a Special Court is to ensure speed for such trial. "Special
Court" is defined in the Act as "a Court of Session specified as a Special
Court in Section 14" (vide Section 2(1)(d). 1

E Thus the Court of Session is specified to conduct a trial and no other
court can conduct the trial of offences under the Act. Why did Parliament
provide that only a Court of Session can be specified as a Special Court?
Evidently the legislature wanted the Special Court to be a Court of Session.
Hence the particular Court of Session, even after being specified as a Special
Court, would continue to be essentially a Court of Session and designation
F of it as a Special Court would 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 XVlll of the Code which contains a fascicules
of provisions for "trial before a Court of Session".

Section 193 of the Code has to be understood in the aforesaid backdrop.
G 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 Jf/J
H differently in express language regarding taking of cognizance, and the second
MOLYv. STATE OF KERALA [PASAYAT. J.] 351
iii,
,--!
is when any other law has provided differently in express language regarding A
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 B
directly, without the case being committed to it by a Magistrate.

Neither in the Code nor in the Act is there any provision whatsoever,
rr 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
c
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 D
the work of performing all the preliminary formalities which Magistrates
have to do until the case is committed to the Court of Session.

A reading of the concerned provisions makes it clear that subject to the
provisions in other enactments all offences under other laws shall also be
investigated, inquired into, tried and otherwise dealt with under the provisions E
of the Code. This means that if another enactment contains any provision
which is contrary to the provisions of the Code, such other provision would
apply in place of the particular provision of the Code. If there is no such
contrary provision in other laws, then provisions of the Code would apply to
the matters covered thereby. This aspect has been emphasized by a Constitution F
Bench of this Court in para 16 of the decision in A.R. Antulay v. Ramdas
Sriniwas Nayak, (1984] 2 SCC 500. It reads thus"

"Section 4(2) provides for offences under other law which may
be investigated, inquired into, tried and otherwise dealt with according
to the provisions of the Code of Criminal Procedure but subject to G
any enactment for the time being in force regulating the manner or
place of investigation, inquiring into, trying or otherwise dealing with
such offences. In the absence of a specific provision made in the
r" statute indicating that offences will have to be investigated, inquired
into, tried and otherwise dealt with according to that statute, the same
will have to be investigated, inquired into, tried and otherwise dealt H
352 SUPREME COURT REPORTS [2004] 3 S.C.R.
!ii
A with according to the Code of Criminal Procedure. In other words,
,_
Code of Criminal Procedure is the parent statute whicli provides for
investigation, inquiring into and trial of cases by criminal courts or
various designations."

Section 5 of the Code cannot be brought in aid for supporting the view
B that the Court of Session specified under the Act obviate the interdict contained
in Section I93 of the Code so long as there is no provision in the Act
empowering the Special Court to take cognizance of the offence as a Court
of original jurisdiction. Section 5 of the Code reads thus:

"5.- Saving- Nothing contained in this Code shall, in the absence
c of a special provision to the contrary, affect any special or local law
for the time being in force, or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any other
law for the time being in force."

This Court in Directorate of Enforcement v. Deepak Mahajan, [1994)
D 3 SCC 440, on a reading of Section 5 in juxtaposition with Sei:tion 4(2) of
the Code, held as follows:

"It only relates t9 the extent of application of the Code in the
matter of territorial and other jurisdiction but does not nullify the
effect of Section 4(2). In short, the provisions of this Code would be
E
applicable to the extent in the absence of any contrary provision in
the special Act or any special provision excluding the jurisdiction or
applicability of the Code".

Hence, we have no doubt that a Special Court under this Act is essentially
F 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 re-iterating the
view taken by this Court in Gangula Ashok and Anr. v. State of A.P., [2000)
2 SCC 504 and in Vidyadharan v. State of Kera/a, [2004) I SCC 215 in
G 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.

Though the plea relating to lack of jurisdiction was not raised before y·>
the lower Courts, in view of the undisputed position on facts and inasmuch
1-1
MOL Y v. STA TE OF KERA LA [PASA YAT • .I.] 353
as a pure question of law without any factual controversy is involved, we feel A
• interference on the facts of the case is called for.

One more plea which was pressed by learned counsel for the appellants
is that continuance of the proceedings before the appropriate Court in the
manner prescribed in law would serve no useful purpose in view of the long
passage of time. We do not find any substance in ti' i~ plea. It is for the B
Competent Court to decide regarding the action to be taken next, after hearing
both sides as provided in Section 227 of the Code. No direction can be given
to the said Court at this premature stage as to what course the Court should
adopt in dealing with the complaint. It is open to the appellants to raise all
their contentions at that stage if they want to make a plea for discharge. We C
make it clear that as and when such plea is made to the Judge of the Competent
Court, he shall pass appropriate orders in accordance with law.

With the aforesaid directions and observations the appeals are finally
disposed of.
D
B.K.M. Appeal disposed of.