PALLA KASIVISWANADHAM Vs. STATE REP

JUDGEMENT

(1.) The petitioner is charged in C.C. No. 11/93 under S. 7(1)(d) of the Protection of Civil Rights Act, 1955 (hereinafter called 'the Act') and Ss, 504 and 506, IPC. When the case was taken up for trial by the VII Metropolitan Magistrate-cum-Special Mobile Magistrate, the petitioner filed a petition stating that the said Court had no jurisdiction to try his case, as the offence took place in a scheduled area and as per Schedule V of the Constitution of India, the scheduled area falls within the exclusive jurisdiction of Executive Magistrate and that the Criminal Procedure Code, 1973 was not applicable and the Judicial Magistrate has no jurisdiction to try the offence. On the said objection the Special Mobile Magistrate sent the record to the Metropolitan Sessions Judge, Visakhapatnam, who has taken it on file as Crl.R.C. No. 36/94. The learned Sessions Judge held that the Court of VII Metropolitan Magistrate-cum-Special Mobile Magistrate has been constituted to deal with cases under the Act. The said Court was designated under the provisions of the Act for the trial of cases in Agency areas and under the provisions of the Act only the said Court has got jurisdiction to try the offences under the Act for the offences committed in the Agency area of Visakhapatnam District. In that view the objection, was overruled and the Special Mobile Magistrate was directed to proceed with the case. Questioning the said order, this Crl R.C. has been filed.

(2.) The counsel for the petitioner contended that the Sub-Divisional Magistrate, Paderu, ought not to have sent the case record to the Special Mobile Magistrate directly and only the Principal Sessions Judge has got the jurisdiction to allot the cases to the Special Court. This objection is highly technical. The Sub Divisional Magistrate thinking that the VII Metropolitan Magistrate-cum-Special Mobile Magistrate has been constituted specially for the purpose of trying cases arising under the Act in Visakhapatnam District, has sent the file to him. lt hardly matters whether the case was allotted by the Principal Sessions Judge, who is alleged to have jurisdiction to allot the case to the Special Mobile Magistrate or has been directly sent by the Sub-Divisional Magistrate to the Special Mobile Magistrate. The petitioner has no complaint of prejudice in this regard. Hence this objection has no substance.

(3.) The second contention of the petitioner's counsel is that the VII Metropolitan-cum-Special Mobile Magistrate has no jurisdiction to try the case since it has taken place in a Scheduled Area (Agency area) and according to the Fifth Schedule of the Constitution of India the offences committed in a Scheduled area fall within the jurisdiction of Executive Magistrate. The learned counsel further contended that the Code of Criminal Procedure, 1973, (thereinafter called 'Code of 1973') was not applicable to the offences committed in Scheduled areas. Under Art. 244 of the Constitution of India read with para 5 of the Fifth Schedule the Governor has issued a notification in G.O. Ms. No. 485 Home (Courts-B) Dept., dt. 20-3-1974 directing that the Code of Criminal Procedure 1973, shall not apply with effect from 1/04/1974 to the Scheduled areas. Hence, the Code of Criminal Procedure 1898 (hereinafter called 'Code of 1898') was only applicable and that S. 15 of the Act making the Code of Criminal Procedure 1973 applicable to the Scheduled Areas is illegal.