AFAQ AHMAD Vs. STATE OF U P

JUDGEMENT

(1.) S. N. Sahay, J, This is a petition under Article 226 of the Constitution, for issuing a writ of habeas corpus for the release of the petitioner.

(2.) THE case of the petitioner Afaq Ahmad is that he is involved in Case Crime No. 1248 of 1993 under Section 302, I. P. C. and Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) relating to P. S. Kotwali, district Unnao. THE petitioner surrendered in the court of II Addl. Sessions Judge, Unnao on November 9, 1953, on November 11, 1993 he was remanded under Section 167, Cr. P. C by the II Addl. Sessions Judge, Unnao till November 24, 1993. He was again remanded on November 24, 1993 up to December 7, 1993. THE charge-sheet was submitted in the court of II Addl. Sessions Judge, Unnao on December 7, 1993. THE copies were served on the accused persons on December 21, 1993 and the petitioner was remanded from December 21, 1993 to February 1, 1994. He was again remanded from February 1, 1994 to March 1994. THE charge was framed on March 4, 1994 and the next date was fixed as April 16, 1994. THE case was ordered to be sent to the court of Chief Judicial Magistrate, Unnao on April 1, 1994. On that date the learned Chief Judicial Magistrate stayed the proceedings in view of the order, dated April 5, 1994 passed by this court in Writ Petition No. 1717 (MB) of 1994. THE next date was fixed as July 16, 1994. THE case was adjourned from time to time and on September 2, 1994 the next date was fixed as September 18, 1994 and it was directed that necessary information may be obtained with regard to the stay order. THE petitioner has contended that the Court of II Addl. Sessions Judge, Unnao is not competent to take cognizance of the case unless it is committed to the Court of Session by a Magistrate and hence the proceedings on the basis of the cognizance taken by the said court on December 7, 1993 are illegal. THE petitioner has also contended that after April 1, 1994 no order granting remand to the petitioner has been passed by any court and the Magistrate is also not competent to grant remand unless he takes cognizance. Thus, according to the petitioner, his detention is illegal and without any authority of law.

(3.) IT may be mentioned that in the case of Pappu Singh cited above, learned Single Judge took the view that a Special Court specified under Sec tion 14 of the Act is essentially a Court of Session and it can exercise only such powers as a Court of Session possesses and it could not be able to take cognizance of any offence because of the restrictions placed upon it by the provisions of Section 193, Cr. P. C. In that case, it not being a Court of Magistrate, would not be competent to take cognizance of an offence under the provisions of Section 190, Cr. P. C. As a result in taking of the cognizance, the provisions of Section 190, Cr. P. C. would apply and it is only a Magis trate who can take cognizance of an offence under the provisions of the Act and cognizance taken by Addl. Sessions Judge is not in accordance with law.