KEDAR NATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petition raises a short point.

(2.) A written complaint was lodged by one Asha Ram Bhil in the Court of Chief Judicial Magistrate, Jaisalmer alleging that the petitioners have committed offences under sections 147, 148, 149, 427, 452, 300, 354, 504, 506 I. P. C. and Sec. 323 I. P. C. read with S. 34 I. P. C. and under S. 3 (x) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short hereinafter to be referred as 'the Act of 1989') on January 19,1993. On the receipt of the complaint, the Chief Judicial Magistrate ordered as under : ******************

(3.) IN order to appreciate the controversy: it would be profitable to reproduce all the relevant provisions referred to above; " S. 4 of the Code reads as under: Trial of offences under the INdian Penal Code and other laws. (1) All offences under the INdian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Sec. 156 of the Code reads as under:- Police officer's power to investigate cognizable case, 156. (l)Any officer in charge of a police station may, without the order of a Magistrate investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above - mentioned. S. 190 of the Code reads as under:- Cognizance of offences by Magistrate. 190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence ; (c) upon a police report of such facts ; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. S. 193 of the Code reads as under: Cognizance of offences by Courts of Session. 193. 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 any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. S. 200 of the Code reads as under: Examination of complainant. 200. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present: if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. S. 202 of the Code reads as under: Postponement of issue of process. 202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised, to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) IN an inquiry under sub-section (1), the Magistrate may, if he think fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. S. 2 (d) of the Act of 1989 reads as under: Definitions.- (l)IN this Act, unless the context otherwise requires,- (a ). . . . . . . . . . . . (b ). . . . . . . . . . . . (c ). . . . . . . . . . . . (d) "special Court" means a Court of Session specified as a Special Court in Section 14; (e ). . . . . . . . . . . . (f ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S. 14 of the Act of 1989 reads as under: 14. Special Court. 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. S. 20 of the Act of 1989 reads as under: 20. Act to override other laws. Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.