SHANTABEN BHURABHAI BHURIYAversusANAND ATHABHAI CHAUDHARI & ORS.

460                      [2021]REPORTS
               SUPREME COURT   10 S.C.R. 460               [2021] 10 S.C.R.


A                  SHANTABEN BHURABHAI BHURIYA
                                        v.
                 ANAND ATHABHAI CHAUDHARI & ORS.
                       (Criminal Appeal No. 967 of 2021)
B                             OCTOBER 26, 2021
               [M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
            Scheduled Castes and Scheduled Tribes (Prevention of
      Atrocities) Act, 1989 – Proviso to s.14 inserted by amendment –
      Code of Criminal Procedure, 1973 – ss.207, 209, 193, 482 –
C
      Offences under Atrocities Act – Second proviso to s.14 confers
      powers upon the Special Court constituted u/s.14 also to directly
      take cognizance of such offences – Cognizance taken by Magistrate
      and thereafter case committed to the Special Court – Criminal
      proceedings, if vitiated – High Court quashed and set aside the FIR
D     as well as order passed by the Magistrate taking cognizance and
      issuing summons for offences under IPC as well as Atrocities Act –
      On appeal by original informant/complainant, held: It cannot be
      said that proviso to s.14 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
E
      because the Magistrate had taken cognizance of the offences and
      thereafter the case was committed to the Special Court, it cannot be
      said that entire criminal proceedings including FIR and charge-
      sheet etc. are vitiated – Unless the rights which flow from s.14 of
      the Atrocities Act are affected, it cannot be said that the accused is
F     prejudiced by the Magistrate taking cognizance for the offences
      under the Atrocities Act and thereafter committing the case to the
      Special Court – Impugned judgment quashing the entire criminal
      proceedings against accused for offences u/ss.452, 323, 325, 504,
      506(2), 114, IPC and s.3(1)(x) of the Atrocities Act, is set aside –
      Accused be tried by Special Court having jurisdiction – Penal Code,
G
      1860 – ss.452, 323, 325, 504, 506(2) and 114 – Constitution of
      India – Article 226 – Scheduled Castes And The Scheduled Tribes
      (Prevention Of Atrocities) Amendment Act, 2015.
            Scheduled Castes and Scheduled Tribes (Prevention of
      Atrocities) Act, 1989 – s.14 – Object and purpose of – Discussed.
H
                                       460
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                    461
                  CHAUDHARI & ORS.

      Scheduled Castes and Scheduled Tribes (Prevention of            A
Atrocities) Act, 1989 – s.14 – Pre and Post Amendment – Discussed
– Scheduled Castes And The Scheduled Tribes (Prevention Of
Atrocities) Amendment Act, 2015.
      Code of Criminal Procedure, 1973 – s.482 – Held: Criminal
proceedings cannot be quashed in exercise of powers u/s.482 on        B
the ground of delay in lodging of FIR.
      Code of Criminal Procedure, 1973 – s.197 – If applicable –
Serious allegations against accused-Police Officers of misuse of
powers – Held: It is debatable whether the acts alleged to have
been done by the accused can be said to be part of official duties    C
and thus if power u/s.197 would apply – Further, lack of sanction
for prosecution u/s.197 can not be a ground to quash criminal
proceedings u/s.482, CrPC.
      Code of Criminal Procedure, 1973 – ss.460, 190 – Held: Even
considering s.460, if any Magistrate not empowered to take            D
cognizance of an offence u/clause (a) or (b) of sub-section(1) of
s.190, takes cognizance, such irregularities do not vitiate
proceedings.
      Words & Phrases – “only”, missing in second proviso to s.14
– Intention of legislature – Discussed – Scheduled Castes and         E
Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Second
proviso to s.14.
      Allowing the appeal, the Court
       HELD: 1.1 The object and purpose of insertion of Section
14 is to provide speedy trial for the offences under the Atrocities   F
Act, 1989 and to avoid the delay which was taking place by the
committal of the offence by the Magistrate to the Special Court /
Sessions Court. [Para 8.2][478-G]
      Rattiram and Others vs. State of Madhya Pradesh
      reported in (2012) 4 SCC 516: [2012] 3 SCR 496 –                G
      relied on.
      1.2 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
                                                                      H
462            SUPREME COURT REPORTS                    [2021] 10 S.C.R.


A     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
B
      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, 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
C     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, IPC of the Indian Penal Code and
      under Section 3(1)(x) of the Atrocities Act are to be quashed and
      set aside. In view of insertion of proviso to Section 14 of the
D
      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,
E     for the purpose of providing for speedy trial directly take
      cognizance of the offences under the Atrocities Act. But at the
      same time, 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
F
      cannot be quashed and set aside solely on the ground that
      cognizance has been taken by the 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
G     Special Court / Court of Session. [Para 9.1][479-C-H; 480-A-B]
            1.3 In support of the above conclusion, the words used in
      second proviso to Section 14 are required to be considered
      minutely. The word “only” is conspicuously missing. If the
      intention of the legislature would have to confer the jurisdiction
H
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                     463
                  CHAUDHARI & ORS.

to take cognizance of the offences under the Atrocities Act            A
exclusively with the Special Court, in that case, the wording should
have been “that the Court so established or specified only shall
have power to directly take cognizance of offences under this
Act”. Therefore, merely because now further and additional
powers have been given to the Special Court also to take
                                                                       B
cognizance of the offences under the Atrocities Act and in the
present case merely because the cognizance is taken by the
Magistrate for the offences under the Atrocities Act and thereafter
the case has been committed to the Special Court, it cannot be
said that entire criminal proceedings have been vitiated and same
are required to be quashed and set aside. Even the aforesaid           C
aspect is also required to be considered from another angle i.e.
theory of prejudice to the accused. 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
                                                                       D
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 Magistrate for the offences under the Atrocities     E
Act and thereafter to commit the case to the Special Court, he is
prejudiced. 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
                                                                       F
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 Magistrate has taken cognizance for the offences under
the Atrocities Act and thereafter the case is committed to the         G
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 a premium to an accused who is alleged to have
                                                                       H
464            SUPREME COURT REPORTS                    [2021] 10 S.C.R.


A     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. [Paras 9.2-
      12][480-C; 481-B-G]
B            2.1 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
C     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. [Para 14][482-E-G]
             2.2 Now, so far as the observation made by the High Court
      that in view of bar under Section 197 of the Code of Criminal
D     Procedure and no sanction was obtained is concerned, the
      aforesaid also cannot be ground to quash criminal proceedings in
      exercise of powers under Section 482 of the Code of Criminal
      Procedure. Looking to serious allegations against the Police
      Officers of misuse of powers, and it is alleged that innocent
E     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
F     village and the allegation against the accused are with respect to
      second incident, it is 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,
G     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

H
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                         465
                  CHAUDHARI & ORS.

authority to take sanction and then proceed, instead of completely         A
quashing the entire criminal proceedings. The impugned judgment
and order passed by the High Court in Special Criminal Application
No.5670 of 2017 is quashed and set aside. Accused be tried by
the Special Court having jurisdiction for the aforesaid offences.
[Paras 15, 16][482-G-H; 483-A-D, F]
                                                                           B
      State of MP v. Bhooraji and Ors. (2001) 7 SCC 679 :
      [2001] 2 Suppl. SCR 128; Moly and Anr. v. State of
      Kerala (2004) 4 SCC 584 : [2004] 3 SCR 346;
      Vidyadharan v. State of Kerala (2004) 1 SCC 215:
      [2003] 5 Suppl. SCR 524 – referred to.
                                                                           C
                        Case Law Reference
[2012] 3 SCR 496                relied on               Para 3.2
[2001] 2 Suppl. SCR 128         referred to             Para 8.2
[2004] 3 SCR 346                referred to             Para 8.2           D
[2003] 5 Suppl. SCR 524         referred to             Para 8.2
     CRIMINAL APPELLATE JURISDICTION” Criminal Appeal
No.967 of 2021.
      From the Judgment and Order dated 09.05.2019 of the High Court
of Gujarat at Ahmedabad in Special Criminal Application No.5670 of         E
2017.
      Nikhil Goel, Ms. Naveen Goel, Vinay Mathew, Advs. for the
Appellant.
      Aniruddha P. Mayee, Adv. for the Respondents.                        F
      The Judgment of the Court was delivered by
      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
                                                                           G
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
                                                                           H
466              SUPREME COURT REPORTS                        [2021] 10 S.C.R.


A     and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
      referred to as the “Atrocities Act”) and also quashing and setting aside
      the order of issuance of summons dated 15.02.2017 passed by the learned
      JMFC, Jhalod in Criminal Inquiry No.108 of 2013 as well as all
      consequential proceedings arising therefrom, the original informant/
      complainant has preferred present Appeal.
B
               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-
C     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
D     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
E     one Pravinbhai who lives in their society and thereafter, the police were
      called; that the Police Officers came to the Society and since the people
      from the society were not satisfied with the police, the accused persons
      who are Police Officers got excited and thereafter, staff from SP Office,
      Dahod was called and thereafter the respondent no.1 – original accused
F     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.
G     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
H     and therefore, she was constrained to file the complaint before the learned
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                           467
            CHAUDHARI & ORS. [M. R. SHAH, J.]

Magistrate on 13.09.2013. That learned Magistrate sent the complaint         A
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
                                                                             B
directed that yadi in this regard should be sent to the Dy.Sp, Dahod.
That the Investigating Officer submitted report on 29.05.2014 stating
that the allegation in the FIR with regard to beating are not supported
and as per the statement of Dy.Sp recorded on 27.5.2014, the accused
no.2 was present with him in Limdi Police Station at the time of alleged
offence and had not gone outside the police station. In the report, it was   C
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      D
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    E
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.                F
      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            G
Procedure and prayed to quash and set aside the FIR / complaint being
M Case No. 2 of 2013 as well as order of issuance of summons dated
15.02.2017 passed in Criminal Case No.169 of 2017.
      2.5. It was mainly contended on behalf of the accused that the
learned Magistrate had no authority to take cognizance of the offences       H
468            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     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
B
      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,
C     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
D     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 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
E     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.
F
            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
G     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
H     cognizance of the offences.
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                               469
            CHAUDHARI & ORS. [M. R. SHAH, J.]

       2.9. Feeling aggrieved and dissatisfied with the impugned judgment        A
and order passed by the High Court of Gujarat quashing and setting
aside the entire criminal proceedings / FIR and the order passed by the
learned Magistrate taking cognizance and issuing the summons for the
offences under the Indian Penal Code as well as under the provisions of
Atrocities Act, the original complainant has preferred present appeal.
                                                                                 B
       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             C
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              D
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             E
submitted that it gives a choice to the Investigating Agency to file the
report either before the Magistrate who will commit 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             F
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           G
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            H
470             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     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
B     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 search and seizure). It is submitted that the accused
      is not affected by the forum which takes cognizance and issues summons
C     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
D     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
E
      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
F     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
G     getting FIR registered on 07.09.2013 i.e. on the next day but the FIR
      was not lodged 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
H     FIR and therefore, the finding on delay is erroneous and without merit.
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                              471
            CHAUDHARI & ORS. [M. R. SHAH, J.]

        3.6. It is further submitted by Shri Nikhil Goel, learned counsel for   A
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
                                                                                B
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.                                                                         C
       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.
                                                                                D
      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           E
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          F
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        G
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?
                                                                                H
472            SUPREME COURT REPORTS                         [2021] 10 S.C.R.


A            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:
B           “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”
C
            “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
D           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,
E           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.”
F
             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
G     the 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
H
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                               473
            CHAUDHARI & ORS. [M. R. SHAH, J.]

original jurisdiction except as otherwise expressly provided by the Code         A
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
                                                                                 B
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           C
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                  D
Vidyadharan vs. State of Kerala reported in (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             E
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     F
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             G
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       H
474            SUPREME COURT REPORTS                         [2021] 10 S.C.R.


A     the relevant provisions under the old Code- Code of Criminal Procedure,
      1898 and the relevant 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
B
      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,
C     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
D     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
E     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
F           the Court of Session. Mr. Fakhruddin, learned senior counsel,
            would submit that the use of the words “it appears to the
            magistrate” are of immense signification and the magistrate
            has the discretion to form an opinion about the case and not
            to accept the police report.
G           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
H           precedent for commitment. It is noteworthy that after the words,
SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                       475
       CHAUDHARI & ORS. [M. R. SHAH, J.]

namely, “it appears to the Magistrate”, the words that follow       A
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        B
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
                                                                    C
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.         D
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 appreciably     E
   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           F
   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         G
   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.                                                       H
476             SUPREME COURT REPORTS                            [2021] 10 S.C.R.


A            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.
B            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
C            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 are not in the realm of abstraction. They do not operate
             in a vacuum. They are to be concretely established on the
D            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
E            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
F     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
      theScheduled Tribes (Prevention of Atrocities) Act, 1989 and observed
      that it does not vitiate the trial and on the said ground alone, the conviction
G     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
H     observed in paras 59, 63, 64 and 65 as under:
SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                         477
       CHAUDHARI & ORS. [M. R. SHAH, J.]

“59. At this juncture, we would like to refer to two other            A
concepts, namely, speedy trial and 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
                                                                      B
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            C
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         D
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
                                                                      E
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
                                                                      F
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         G
of certain offences in our existing criminal 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
                                                                      H
478            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A           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
B           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
C           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
D     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
E     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, proviso to Section 14 came to be inserted
      by Act 1 of 2016, by which, it has been provided that after post amendment
F     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
G     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
H     the Special Court so established or specified for the purpose of providing
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                             479
            CHAUDHARI & ORS. [M. R. SHAH, J.]

for speedy trial the power to directly to take cognizance of offences          A
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
                                                                               B
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 ?
         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
                                                                               C
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          D
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
                                                                               E
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       F
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
                                                                               G
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             H
480            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     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
B
      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
C
      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
D     specified only shall have power to directly take cognizance of
      offences under this Act”. Therefore, merely because now further and
      additional powers have been given to the Special Court also to take
      cognizance of the offences under the Atrocities Act and in the present
      case merely because the cognizance is taken by the learned Magistrate
      for the offences under the Atrocities Act and thereafter the case has
E
      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
F     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
G     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
H
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                             481
            CHAUDHARI & ORS. [M. R. SHAH, J.]

non-compliance with the same and raising of objection in that regard           A
after conviction attracts the applicability of the principles of “failure of
justice” and the convict becomes obliged in law to satisfy the Appellate
Court that he has been prejudiced and deprived of a fair trial or there
has been miscarriage of justice; (5) it would be a totally inapposite and
inappropriate to hold that such non-compliance vitiates the trial.
                                                                               B
       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    C
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              D
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       E
proceedings. At the most, it can be said to be irregular proceedings for
which, it does not vitiate the proceedings. In view of the above and for
the reasons stated above, the view taken by the High Court that as in the
present case the learned Magistrate has taken cognizance for the
offences under the Atrocities Act and thereafter the case is committed
to the learned Special Court and therefore, entire criminal proceedings        F
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       G
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        H
482            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     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
B
      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 has not at all adverted itself to
C     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
D     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
E     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
F     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.
G           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 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
H     against the Police Officers of misuse of powers and it is alleged that
     SHANTABEN BHURABHAI BHURIYA v. ANAND ATHABHAI                             483
            CHAUDHARI & ORS. [M. R. SHAH, J.]

innocent persons residing in the society were beaten and even in the           A
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
                                                                               B
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                C
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.
                                                                               D
       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 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        E
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.                                                                        F

Divya Pandey                                                 Appeal allowed.




                                                                               G




                                                                               H