Girija Deo vs The State of Jharkhand and Another

Jaya Roy, J.—Heard the learned counsels for the petitioner, State and the Opposite Patty no. 2.

The petitioner has filed this application for quashing the order dated 15.3.2005 passed by the Judicial Magistrate, Garhwa in Complaint Case No. 702 of 2004 whereby the Judicial Magistrate summoned the petitioner for facing the trial for the offence committed under Sections 323, 380, 452 of the I.P.C. and u/s 3/4 of Scheduled Caste & Scheduled Tribes Act and also has summoned two other accused persons for facing the trial under Sections 323, 380 and 452 I.P.C.

The case of the complainant, in brief, is that he has got a piece of land appertaining to Khata No. 155, Plot No. 146, measuring an area of three decimals and the accused Girija Deo (the petitioner) claiming the said land to be his own, tried to get the foundation laid by Ram Natli Paswari and Shivnath Paswan and on protest by the complainant he abused the complainant by tittering "SALE DUSAD ACHHOT, NEECH HARIJAN" mid asked him to leave the land. In the meantime when the wife of the complainant Kabutri Devi came there, the accused abused her also by filthy words and along-with other accused, snatched the Silver Neekless from her. It is further alleged in the complainant petition that Girija Deo threatened the complainant that he will burn the complainant and his wife by Pouring KEROSIN OIL on them. The Chief Judicial Magistrate, Garhwa registered a case on the basis of the complainant i.e. Complaint Case No. 762 of 2004 and after examining the complainant on solemn affirmation, took cognizance and transferred the case for enquiry to the Court of Judicial Magistrate, Garhwa. Thereafter, the Judicial Magistrate examined the witnesses of the complainant u/s 202 Cr. P.C., After considering the complaint petition, S/A of the complainant recorded u/s 200 Cr. P.C., and the statements of the witnesses who have been examined u/s 202 Cr. P.C., finds that a prima-facie case is made out under Sections 323, 380 and 452 I.P.C. and u/s 3 & 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Court further finds that accused Girija Devi deserves to be summoned for facing trial for prima-facie having committed the offence under Sections 323, 380, 452 I.P.C. and 3 & 4 S.C., S.T. Act and the accused Ramnath Paswan and Shivnath Paswan deserves to be summoned for facing trial for prima-facie having committed the offences under Sections 323, 380 and 452 I.P.C. Thereafter, the court below directed to issue summon against the accused persons including the petitioner.

Mrs. Ritu Kumar, the learned Counsel appearing for the petitioner submits that according to the Rule 7 of the Scheduled Castes and the Scheduled Tribes (prevention of Atrocities) Act. 1989, if an offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. She has relied on a decision of the Patna High Court reported in 2008 (3) East Cr.C. where it is decided;

Specific provision provided under the Special Act would override the general provision provided in the Cr. P.C.

In the said case, subject matter of the case falls within the purview of Drugs and Cosmetic Act. 1 find, under the Drugs and Cosmetic Act, only Drug Inspector has been authorized to make search & seizure and to institute the case and the police is not empowered to register any First Information Report and investigate the case as well as to submit charge-sheet u/s 173 of the Cr. P.C. As the prosecution initiated on the basis of the F.I.R., the Hon''ble Court in that case (case referred) quashed all subsequent act being without jurisdiction. The present case is under the Scheduled Castes and the Scheduled Tribes (Prevention, of Atrocities) Act. In absence of any specific provision in the Act for taking cognizance of the offence committed, the provision of Cr. P.C. with regard to investigation, enquiry and trial would be applicable. Section 7 is only applicable where any F.I.R. is lodged for the offence committed under this Act. In the present case, a complaint has been filed. As staled above after registering the complaint and examining the complainant on S/A u/s 192 Cr. P.C., took cognizance of the case and transferred the same to the Judicial Magistrate who after examining the witnesses u/s 202 and having found prima-facie a case, issue summon to the accused persons. Therefore, the aforesaid decision cited by the counsel of the petitioner is not applicable in the present case.

In the case of Osman Miyan v. State of Jharkhand and Anr. reported in 2003 E C.C. (45) , the Hon''ble High Court held:

The Scheduled Castes and Scheduled Tribes, (prevention of Atrocities) Act dues not provide for any procedure to be adopted by the Special Court for trial of offence under the said Act, Therefore, general procedure laid down under the Cr. P.C. has to be followed, There is no provision in the Act empowering the Special Court to take cognizance of an offence and therefore, all provisions of Cr. P.C with regard to investigation. Enquiry and trial would be applicable to case under the Act except with regard to the matter for which a specific provision has been made under the Act and further that only those provisions of the Cr. P.C would be excluded from application regarding which there has been specific mentioned in the Act regarding their exclusion. Therefore, when there is no specific provision in the Act for taking cognizance of the offence under the Act by the Special Court as constituted u/s 14 of the Act and therefore, in my view the Special Court has no jurisdiction to take cognizance of the offences rather jurisdiction of the Special court is only to try the offence under the Said special Act. I further hold that for the purpose of the enquiry, investigation and cognizance under the said Act, the general provisions of the Cr. P.C shall apply.

The learned Counsel of the petitioner has not raised any other point except which is slated above.

The counsel for the Opposite Party no. 2 submits that the learned Judicial Magistrate after being satisfied that prima facie offence is made out against the petitioner, issued summon to the petitioner to face the trial in this case.

It is further stated that there is no illegality or any apparent error in the impugned order.

In my opinion, unless there is any jurisdictional error or apparent error, this Court should not interfere in the impugned order. I find the impugned order does not suffer from any impropriety or from any legal lacuna or any apparent error. Therefore, I do not find any reason to interfere with the impugned order. Accordingly, this application is dismissed.