M.R.SHAH,J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.05.2019 passed by the High Court of Gujarat passed in Special Criminal Application No.5670 of 2017, by which, the High Court has allowed the said Special Criminal Application and has quashed and set aside the FIR being M Case No.2 of 2013 for the offences punishable under Sections 452, 323, 325, 504, 506(2) and 114 of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") and also quashing and setting aside the order of issuance of summons dated 15.02.2017 passed by the learned JMFC, Jhalod in Criminal Inquiry No.108 of 2013 as well as all consequential proceedings arising therefrom, the original informant/ complainant has preferred present Appeal.
(2.) The facts leading to the present appeal in nutshell are as under: 2.1. That on 06.09.2013, one FIR being CR.No.I-104 of 2013 came to be registered against the husband of the original complainant- appellant herein for the offences punishable under Sections 323, 353, 362, 186 and 114 of the Indian Penal Code. That the said FIR was lodged / given at the instance of the respondent no.1 herein - original accused no.1 who was working as Police Sub Inspector alleging inter alia that the original accused persons named therein obstructed the public servants in performance of their duties and was beaten by them under the guise that they were not able to catch the thief and caused injuries to them. 2.2. As per the case of the complainant herein, in the village there were increasing incidents of theft and loot, due to which, the villagers were afraid. On 6.9.2013, at about 8 pm one thief came to the house of one Pravinbhai who lives in their society and thereafter, the police were called; that the Police Officers came to the Society and since the people from the society were not satisfied with the police, the accused persons who are Police Officers got excited and thereafter, staff from SP Office, Dahod was called and thereafter the respondent no.1 - original accused no.1 went back to Limdi Police Station. As per the case of the complainant, at 10.30 pm on 06.09.2013, when the residents of the society were in their houses and at that time, the complainant was sitting outside her house, three Police Officers came in a car and original accused nos. 1 and 2 came to the society and all the original accused persons abused the complainant with regard to her caste and also caused injuries to her. As alleged in the FIR, the original accused persons also ransacked the house of complainant and also beat the son of the complainant and took away husband of the complainant and gave threats to them with dire consequences. As per the case of the complainant, she tried to lodge a formal complaint on 07.09.2013, but was unable to get the same lodged and therefore, she was constrained to file the complaint before the learned Magistrate on 13.09.2013. That learned Magistrate sent the complaint for investigation as per Section 156(3) of the Code of Criminal Procedure by observing that having heard the complainant and perused the documentary evidence and considering the seriousness of the case, the investigation is required. The learned Magistrate also directed the Investigating Officer to submit the report before 29.10.2013 and also directed that yadi in this regard should be sent to the Dy.Sp, Dahod. That the Investigating Officer submitted report on 29.05.2014 stating that the allegation in the FIR with regard to beating are not supported and as per the statement of Dy.Sp recorded on 27.5.2014, the accused no.2 was present with him in Limdi Police Station at the time of alleged offence and had not gone outside the police station. In the report, it was also stated that statements of the witnesses are general and vague and after investigation, there is no evidence to proceed with the matter. Therefore, the Investigating Agency filed a summary report before the concerned Magistrate to that effect. 2.3. After filing of summary report, learned Judicial Magistrate First Class passed an order for further investigation under Section 173(8) of the Code of Criminal Procedure on 03.10.2015 by observing that summary report is not clear with regard to the involvement of the original accused no.3 and other Police Officers. That thereafter, the Deputy Superintendent of Police, SC/ST Cell, Dahod submitted its report to the learned Magistrate pointing out that the alleged offences are prima facie appear to have been committed by the accused persons. That thereafter, after considering the report submitted by the Deputy Superintendent of Police, SC/ST Cell, Dahod, the learned Magistrate vide order dated 15.02.2017 had taken cognizance of the alleged offences by issuance of the process under Section 204 of the Criminal Procedure Code. 2.4. Feeling aggrieved and dissatisfied with the order passed by the learned Magistrate summoning the accused/ issuing the process against the accused for the aforesaid offences, the accused preferred Special Criminal Application before the High Court under Article 226 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure and prayed to quash and set aside the FIR / complaint being M Case No. 2 of 2013 as well as order of issuance of summons dated 15.02.2017 passed in Criminal Case No.169 of 2017. 2.5. It was mainly contended on behalf of the accused that the learned Magistrate had no authority to take cognizance of the offences under the provisions of the Atrocities Act and only Special Court can take cognizance of the offences. It was submitted that the Court of learned Magistrate is not a Special Court under the provisions of the Atrocities Act. It was further submitted that the impugned FIR is nothing but a counterblast to the complaint filed against the husband of the complainant and others for the incident happened on 06.09.2013 wherein the police was assaulted. It was also submitted on behalf of the accused that there was a gross delay in lodging the FIR / complaint on 15.11.2013 for the offences alleged to have been committed on 06.09.2013 and the delay has not been explained. It was further submitted that at the relevant time Police Officers were discharging their official duties and therefore, before initiation of any proceedings, a sanction under Section 197 of the Code of Criminal Procedure was required and in absence of such sanction from the competent authority, no prosecution could have been launched / continued against them. 2.6. The prayer to quash the FIR and the order issuing the summons on the aforesaid ground was opposed by the learned counsel for the original complainant. Referring to Section 14 of the Atrocities Act, it was submitted that the Special Court has power "only for trial" and the Special Court cannot take cognizance directly. It was further submitted that after filing of the summary report, the learned Magistrate directed further investigation, whereupon, Dy.Sp submitted summary report after investigation submitting that the offence has been made out. 2.7. In response, it was submitted on behalf of the accused that in view of the amended Section 14 of the Atrocities Act, the Special Court can take direct cognizance of the offence and therefore, now learned Magistrate is not empowered to take cognizance directly. 2.8. By impugned judgment and order, the High Court has allowed the Special Criminal Application and quashed and set aside the FIR as well as order passed by the learned Magistrate taking cognizance and issuing summons for the Indian Penal Code offences as well as offences under the Atrocities Act mainly on the ground that in view of the amendment to Section 14 of the Atrocities Act, the Special Court can take cognizance directly and the jurisdiction of the learned Magistrate can be said to be ousted and looking at the allegation in the FIR, in absence of sanction under Section 197 of the Code of Criminal Procedure from the State Government, the concerned Court ought not to have taken cognizance of the offences. 2.9. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Gujarat quashing and setting aside the entire criminal proceedings / FIR and the order passed by the learned Magistrate taking cognizance and issuing the summons for the offences under the Indian Penal Code as well as under the provisions of Atrocities Act, the original complainant has preferred present appeal.
(3.) Shri Nikhil Goel, learned counsel for the appellant has vehemently submitted that High Court has misinterpreted and misconstrued the amendment to Section 14 of the Atrocities Act. It is submitted that as per the High Court, after amendment to Section 14 of the Atrocities Act, cognizance can only be taken by the learned Special Judge/Court and therefore, taking cognizance and issuance of summons by the learned Magistrate can be said to be prohibited by law and consequently quashing the criminal proceedings / FIR on the aforesaid ground is erroneous. It is submitted that apart from the fact that the amendment to Section 14 of the Atrocities Act was brought in the year 2016, second proviso to Section 14 (as amended) cannot be read as a standalone provision and must be read with the purpose it seeks to achieve. It is submitted that by inserting second proviso to Section 14, the purpose it seeks to achieve is providing for speedy trial. It is submitted that amendment does not exclude the provision of Code of Criminal Procedure but only clarify the position that the bar of Section 193 of the Code of Criminal Procedure would not be ipso facto applicable. It is submitted that it gives a choice to the Investigating Agency to file the report either before the Magistrate who will commit the matter to the Court of Special Judge under Section 209 of the Code of Criminal Procedure or to file it directly before the Special Court. It is submitted that interpretation given by the High Court would add premium to the alleged criminal actions of an accused who would not even be tried for serious offences merely because a final report has been forwarded to a wrong forum. 3.1. It is submitted that unlike the old Code, Section 209 of the Code of Criminal Procedure, 1973 does not give any power of inquiry to the Magistrate and the Magistrate is duty bound to commit a matter for trial to the Court of Session once it is found triable by the Court of Session. 3.2 It is submitted that as such and it appears that amendment was required in view of the interpretation given to unamended Section 14 in the judgment of this Court in the case of Rattiram and Others vs. State of Madhya Pradesh reported in (2012) 4 SCC 516. 3.3. It is submitted that even otherwise the irregularity of sending a final report to a wrong Court can be said to be merely an irregularity which does not vitiate the proceedings considering Section 460(e) of the Code of Criminal Procedure. It is submitted that the rationale behind Section 460(e) is that the entry of an accused in our criminal jurisprudence only happen after a cognizance is taken and his first right of objection is contemplated only at the stage of framing of the charge (subject to the provisions of bail and search and seizure). It is submitted that the accused is not affected by the forum which takes cognizance and issues summons to him so long as he gets to agitate his rights before the correct forum. It is submitted that therefore, the impugned judgment and order passed by the High Court overlooks Section 460(e) of the Code of Criminal Procedure. 3.4. It is submitted that the law laid down relating to cognizance must relate back to the date of commission of the offence which in this case is 06.09.2013. It is submitted that cognizance is to be taken of the "offence" and not the offender. It is submitted that therefore, any amendment which is in the nature of substantive right would only be prospective unless expressly stated to be retrospective. It is submitted that if Section 14 of the Atrocities Act is to be interpreted to give a substantive right to the accused, then the date of offence becomes relevant. It is submitted that however if Section 14 of the Atrocities Act is interpreted to be only procedural not affecting the right of an accused then the impugned judgment is ipso facto incorrect because it has scuttled the entire proceedings at the inception on the ground of violation of Section 14 of the Atrocities Act. 3.5. It is further submitted that even the finding recorded by the High Court that there was a delay of two months in lodging the FIR is contrary to the material on record. It is submitted that the alleged offence is committed on 06.09.2013 and in fact earlier an attempt was made in getting FIR registered on 07.09.2013 i.e. on the next day but the FIR was not lodged as the accused were Police Officers and thereafter, the complainant was constrained to file complaint before the learned Magistrate which was filed on 13.09.2013 and only after an order dated 26.09.2013 of the learned Magistrate, an FIR was registered. It is submitted that therefore, as such there was no delay at all in lodging the FIR and therefore, the finding on delay is erroneous and without merit. 3.6. It is further submitted by Shri Nikhil Goel, learned counsel for the complainant that even bar under Section 197 of the Code of Criminal Procedure would not apply to the acts done which are not part of the official duty. It is submitted that this is a case of patent abuse of power. It is submitted that even the issue of sanction is subject to the test of prejudice and failure of justice. It is submitted that even assuming the provisions of Section 197 applies, the High Court ought to have directed the authorities to take sanction and then proceed instead of completely quashing the case. Making above submissions, it is prayed to quash and set aside the impugned judgment and order passed by the High Court and direct the learned Trial Court to dispose of the trial in time bound manner. ;