ORDER

Shacheendra Dwivedi, J. - This petition poses a problem of vital importance as to whether the Sessions Court which is the 'Special Court' specified under section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short the' Act') is empowered to try the offence under the Act without its committal by the Court of Magistrate, as provided under section 193, of the Code of Criminal Procedure (hereinafter referred to as 'Code').

2. Since the petition involves only a legal question, the facts of the case arc not very material. Suffice it to state that the Court of Sessions, specified as 'Special Court' under the impugned order, refused to entertain and try the offence under the Act, on the ground that it had no power to 'try' those offences which were not committed to it by the Magistrate as reouired under section 193 of the Code, and, therefore, dismissed the complaint filed by the petitioner, with further liberty to her to file it before the Magistrate concerned.

3. Although the Code of Criminal Procedure lays down the separate procedure to be followed for the trial of offences on police report and on private complaint and which are exclusively triable by the Court of Session with a restriction under section 193 that the Court of Session shall not take cognizance of any offence as a Court of original jurisdiction, unless the ease was committed to it by a Magistrate under the Code.

The Code as general law, provides the procedure for the investigation, enouiry and trial of the offences. By virtue of Sections 4 and 5 of the Code, its provisions have been made applicable so all investigations, inouiries and trials of the offences under the Indian Penal Code and/or other Laws, unless a separate procedure was otherwise provided therein.

4. It would be useful to reproduce sections 4 and 5 of the Code for the ready reference in the further discussion on the issue.

“4. Trial of offences under the Indian penal Code and other laws.

(1) all offences under the Indian Penal Code (45 of 1960) shall be investigated, inouired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inouired 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, inouiring into, trying or otherwise dealing with such offences."

5. Saving.- Nothing contained in this Code shall in absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

5. The conjoint effect of section 4(2) and section 5 is that all offences whether under Indian Penal Code or under any other law, have to be investigated, inouired into, tried and otherwise dealt with according to the provisions of the Code, unless there be an enactment, regulating the manner of investigation, inouiry or trial or of even otherwise dealing with such offences and in that situation the provisions of such special or local enactment would prevail over those of the Code, to that extent. Sub-section (2) of section 4 of the Code and also the saving clause provide in section 5 clearly indicate that when a Special Act specifies certain offences and lays down a special procedure, the offences under such an Act must be tried under that Act itself. When an act or omission constitutes an offence under two different Acts, it should be dealt with under the Special Act if one falls strictly within it rather than the general law. But when no special procedure is prescribed by the special law, the general procedure laid down in the Code should be followed. Again there is a further provision in section 5 of the Code should be followed. Again there is a further provision in section 5 of the Code that if to the contrary there be a specific provision then that will override even the special or the local law. The provision saves any local or special law or the special jurisdiction or powers and declares that they would remain uneffected by the Code unless there be any specific provision to the contrary. Such specific provision may be in the Code itself or in the special or local law, but in order to be effective, it must cover the field completely and must lay down a different or a contrary rule so as to altogether nullify the other.

6. The Act (Scheduled Castled and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which is an special enactment, was enacted with the object of preventing the commission of offences of atrocities against the numbers of Scheduled Caste and Scheduled Tribes, and for providing the Special Court for the speedy trial of such offence and for the relief and rehabilitation of the victims of such offences and also for matters connected therewith or incidental thereto.

Section 2 (d) of the Act defines 'Special Court' which means a Court of Session, specified as a Special Court in section 14.

Section 14 of the Act, which makes the provision of a Special Court, may be reproduced here under:

14. Special Court- for the purpose of provisions 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."

7. Although, the Act in the above ouoted section 14, has made the provision for the Special Court, it conspicuously does not lay down any procedure to be applied or followed by the Special Court in the matter of taking cognizance of the offence and the trial thereof. Each district has a Court of Session and under the section, that Court has been specified under the notification as a Special Court. Chapter IV of the Act also deals with the appointment of a Special Public Prosecutor for the purpose of conducting the cases in that Court.

As the special enactment, i.e., the Act does not lay down any procedure to be followed by the Special Court, which has to be a Sessions Court, the normal procedure as prescribed by the Code in that regard is to be followed, there being no other provision to the contrary.

8. Under the normal procedural law, there is a restriction imposed on the powers of Court of Session in the matter of taking cognizance of the offences by section 193 of the Code, which runs thus:

"193. Cognizance of offences by Courts of Sessions.- 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."

9. Under the Act, the Court of Session alone has been specified as a Special Court, and a Court of Session i.e. Special Court for the purposes of the Act can only take cognizance of any offence when either the statute empowers it to take cognizance or the case is committed to it by a Magistrate under section 209 of the Code. Admittedly, there is no provision in the Act relating to the taking of cognizance by Special Court as has been provided in the other special enactments such as in the State Act of M.P. Dakaiti Aur Vyapaharan Prabhavit Kshetra Adhiniyam, 1981 section 8 as also in Central Acts such as Narcotics Drugs and Psychotropic Substances Act, 1985, section 36-A (1) (d), Prevention of Corruption Act, 1988, section 5, Essential Commodities Act 1955. Section 12A (1) (d) and in the other enactments such as u/s 109 Terrorist Affected Area (Special Courts) Act, 1984, etc.

In construing a legislation, Court may look to the legislative history and the similar enactments, but bearing always in mind that the intention of legislature is best expressed in the words used. Since the Act contains no such provisions pertaining to procedural law, it cannot be presumed that the legislature was unaware of such provisions made in the other Special Enactments. It is not competent for any Court to proceed upon the assumption that the legislature had made a mistake. Even if there be some defect in not making a provision in an enactment or in the phraseology used by legislature, the Court cannot aid the legislature's defects in an Act nor add or amend or by providing a construction make up the deficiencies which are left in the Act. No Court has the right to make law. Its function is to expound the law as it is and not to put gloss upon it, or to read into it something which is not there.

11. The object of original law is to protect the innocent and to punish the guilty. The Code provides the procedure and the machinery for the punishment of offences against the substantive criminal law. The Code is a general enactment which yields to the special provisions of Special Acts enacted by the Central or the States. Where a Special Act makes the specified offences and also lays down a special procedure for the prosecution of the offence or imposes restrictions, then that procedure is to be followed and the prosecution for such offences has to be under the provisions of Special Act, else the general procedure, unless prohibited, but prescribed by the Code is to be applied. There is no provision in the Code permitting the Court of Session which has been specified as a Special Court, to take cognizance of any offence, without the case being committed to it by a Magistrate.

12. The Act has prohibited the application of sections 438 and 360 of the Code or the provisions of Probation of Offenders Act, which also fortifies my view that the general law of the Code, which is not inconsistent, would be applicable with the exceptions as provided in the Act.

13. In this view the Magistrate's Court would be the Court of original jurisdiction, also for the offences falling under the Act, to take cognizance as per section 190 of the Code, as the Act makes no provision about taking of cognizance of an offence by the Court of Session specified as Special Court. It would have the power to 'try' the offence on its committal by a Magistrate. As held in this regard by their Lordships of Supreme Court in A.R. Antulay v. Ram Das Shriniwas Nayak and others1, while discussing the application of the provisions of the Code in reference to the powers of Special Court that: -

"If a Special Judge has to take Cognizance of offences, ipso facto, the procedure for trial of such offences has to be prescribed."

The Act prescribes no procedure and the Code has set out the procedure for the trial of cases before the Court of Session in Chapter XVIII and therefore in my view that procedure would also govern the trial of cases before the Special Judge.

14. For canvassing the point that no committal is reouired by a Magistrate for taking cognizance of an offence by Special Court, very strong reliance is placed by petitioner's counsel Shri Akhil Kumar Shrivastava on a Division Bench authority of Kerala High Court in Re: Director General of Prosecution reported in 1993 Cr. L.J. 7602, wherein the support for above view has been sought from the two pronouncements of the Apex Court in State of Bihar v. Ram Naresh3, and A.R. Antulay v. R.S. Nayak (supra).

Out of the above two authorities of Supreme Court, in the first case, the question involved was whether in a case triable by a Court of Session, an application for the withdrawal u/s 494 of the Old Code, with the consent of the Court could lie at the committal stage and in that reference, the Apex Court considered the implication of words "inouiry' and 'trial' with the legislative history of the two words and held that section 494 of the Old Code was wide enough to cover every kind of inouiry and trial and that word 'trial' in the section was not used in any limited sense for its application, but that proposition is also of no help to the petitioner and appears to be wrongly applied to the present controversy. In the case of State of Bihar v. Ram Naresh (supra) itself, it was found by Supreme Court that:

"The words 'tried' and 'trial' appear to have no fixed or universal meaning."

And that "in the Code, the words 'tried' and 'trial' have been used in the sense of reference to a stage after 'inouiry'"

15. There is no conceivable reason, in view of the foregoing discussion, that word 'try' in section 14 of the Act, has not been used to mean the stage after the committal enouiry.

The second case of Supreme Court relied upon in Re: Director General of Prosecution (supra) is of A.R. Antulay (supra) and certain observations made by their Lordships have also been ouoted, but then the grain has been missed for the chaff. In that case, Supreme Court was dealing with the provisions of Criminal Law Amendment Act (46 of 1952) and of Prevention of Corruption Act (2 of 1947) with reference to the provisions of the Code of 1898.

16. Before proceeding further, it is necessary to acouaint with the relevant provisions of Criminal Law Amendment Act, 1952. The Act was enacted, as its long title shows, to amend to Penal Code and the Code of Criminal Procedure, 1898. In section 6, the provision was made (or the appointment of Special Judges for the trial of offences punishable under sections 161, 162,163, 164, 165 or section 165-A of the Indian Penal Code or section 5 of the Prevention of Corruption Act, 1947 or the conspiracy or abetment to commit such offences.

Under section 8 the Special Judge was also empowered to take cognizance of offences without the accused being committed to him for trial.

It was under a detailed discussion in the above context that the position of Special Judge was considered by Full Bench of five judges and the observations which have been ouoted in the above stated authority of Kerala High Court, were made by their Lordships of Supreme Court that shorn of all embellishments, the Court of Special Judge is a Court of original criminal jurisdiction', in A.R. Antulay (supra). I do not wish to burden this order by repeating those observations any further. But the observations, divorced from the context in which they are made, should not be relied upon for taking a particular view, and in the absence of any such provision in the Act, in question, that analogy cannot be applied for the procedure to be adopted by the Special Court under the Act.

Even the authority of Kerala High Court (in Re: Director General of Prosecution) relied very heavily by the petitioner's counsel in the relevant part-discussion made therein, also supports the view, which I am bearing as it was observed in that:-

"…In so far as offences under laws other than, I.P.C. are concerned the provisions of the Code apply in their force subject to the specific or contrary provision made by the law under which those offences are to be investigated or tried.

Where are enactment provides special procedure only for some matters, such procedure must govern those matters and regard to other matters on which that enactment is silent, the provisions of the Code must be applied."

And that "The procedure for trial to be followed can only be that prescribed in the Code since no special provision to that effect is made in the Act. In other words, so long as the Act does not make provision for the procedure to be followed by the Special Court, which is a Court of Session, its procedure regarding trial should be governed by the provisions contained in the Code. In the instant case, a Court of Session is constituted to be the Special Court of Session is one established as per the provisions contained in the Code. That Court when constituted as Special Court and Act constituting it is silent regarding the procedure to be followed by it, the ordinary incidents of procedure for that Court for the trial are to be followed."

17. Further, differently from other Special Enactments wherein provision for ‘Special Court’ is made, the word' specify', occurring in section 14 of the present Act is also of much significance. According to Black's Law Dictionary Fifth Edition, 'specify' means

"To mention specifically, to state in full and explicit terms, to point out, to tell or state precisely or in detail, to particularise, or to distinguish by words one thing from another."

In the other Special Enactments, the words 'constitute', 'establish'; or 'appoint' have been used, with the further provision of procedure to be followed by the Special Court, but the present 'Act merely 'specifies' that Court of Session as a 'Special Court' with no further decision of procedure and thereby for the procedural purposes, the 'Special Court, remains the Court of Session. It has only been particularised with no change in its nomenclature. For trial of specified offences under the Act, Sessions Court is clothed as 'Special Court' without effecting its functioning as such. The intention and object of legislature from these provisions of the Act appears only to seek the trial and decision of specified offences by more experienced, mature and competent hands through the normal procedure as contained in Chapter XVIII of the Code dealing with the trial before a Court of Session after the commitment of the case by a Magistrate, thereby reducing one stage as many of the offences, which could be tried by Magistrate have been made exclusively triable by the Special Court and under the Act the Court of Session has been so specified.

18. Now, the difficulty in my way is a Single Bench decision of this Court in Sukhlal Jatav v. State of M.P. and others4, at this Bench seat taking the similar view and in the line with above discussed Kerala High Court decision which is contrary to my view, and I have no t been able to persuade myself to agree with the view taken by Single Bench of this Court in Sukhlal's case (supra). Therefore, with great respect being unable to subscribe to the view taken in Sukhlal Jatav's case (supra), it is an issue of public importance and the controversy concerns day-today working of the Special Courts, being bound by the judicial discipline and bearing a contrary view to the Single Bench decision, I am reouired to refer the matter to a larger Bench.

19. The matter is, therefore, referred for resolving the controversy to a larger Bench. Let the records of the case be placed before the Hon'ble the Chief Justice for constituting a larger Bench for the decision of the controversy and the issue involved.

Matter referred for resolving controversy to a large Bench.

1. A.I.R. 1984 S.C. 718

2. 1993 Cr. L.J. 760 (Ker.)

3. A.I.R. 1957 S.C. 387.

4. Crl. Rev. No. 149/92; decided on 14.7.1993 (M.P.) Single Bench).