Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XXII

Ans. Yes. The Sessions Judge was not right in proceeding to take cognizance of the offences in flagrant violation of Section 193 Cr.P.C which says that except as otherwise provided by the Cr.P.C 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.

Q.107 Would it make a difference if the Court is a Special Court under the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 and the cognizance taken is on the strength of a police report filed under Section 173(2)Cr.P.C?

Ans. Yes w.e.f. 01-01-2016. As per the second proviso to Section 14 as substituted by the Amending Act 1 of 2016, the Special Judge has been authorised to directly take cognizance of the offences under the Act. So with effect from 1-1-2016 the Special Judge can take cognizance without a committal.

Until 01-01-2016 the Special Act did not say that the Special Court may take cognizance of the offences under the Special Act without a committal. What Section 14 of the Special Act stated was that the State Government may by notification empower a Court of Session to be the Special Court for trial of offences under the Special Act. So the Special Court was held to be a Court of Session which is subject to the restriction under Section 193 Cr.P.C (See Gangula Ashok and another v. State of Andra Pradesh - (2000) 2 SCC 504 = AIR 2000 SC 740 – K. T. Thomas, M. B. Shah - JJ. (The Full Bench decision of the Kerala High Court in 1995 (1) KLT 231 impliedly over-ruled). But where trial has been conducted without demur in a case without a committal, it is only an irregularity curable under Sec. 465 (1) Cr.P.C. (Rattiram v. State of M.P. – (2012) 4 SCC 516 = AIR 2012 SC 1485 – 3 Judges – Dr. Dalveer Bandari, P. S. Thakur, Dipak Misra – JJ).

NOTE BY VRK: Vidhyadharan v. State of Kerala - (2004) 1 SCC 215 = AIR 2004 SC 536 – Doraiswamy Raju, Arijit Pasayat - JJ; Moly and Another v. State of Kerala - (2004) 4 SCC 584 = AIR 2004 SC 1890 - Doraiswamy Raju, Arijit Pasayat – JJ, were overruled in Rattiram (Supra - AIR 2012 SC 1485).

Q.108 Give a few exceptions to Section 193 Cr.P.C ?

Ans. 1. Where the offence of defamation falling under Chapter XXI I.P.C. is committed against Constitutional dignitaries like the “President of India”, “Governor”, a “Minister” or a “public servant” employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions etc. Section 199 (2) Cr.P.C provides that a Court of Session may take cognizance of such offence without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.

2. Where a special law provides for taking cognizance without a committal.

Example : 1. Sec. 36 A (1) (d) of Narcotic Drugs and Psychotropic Substances Act, 1985 (“N.D.P.S. Act” for short).

2. Sec. 5(1) of the Prevention of Corruption Act, 1988 (“P. C. Act” for short).

3. Sec. 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 w.e.f. 26-01-2016

4. Sec. 33 (1) of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act” for short).

Q.109 At the stage of issuing process, can the Court exempt the accused from personal appearance and permit him to appear through his Advocate ?

Ans. At the stage of issuing process, the Court can -

i) under Sec. 205 (1) Cr.P.C. - dispense with the personal appearance of the accused and can permit the accused to be represented by his counsel. After the appearance of the accused, in an appropriate case, the accused can be exempted from his appearing before the Court by passing an order under Section 205 (1) Cr.P.C. reserving the right of the Court to insist on his appearance at any stage thereafter.

Q.110 At the stage of inquiry or trial, can the Court exempt the accused from personal appearance and permit him to appear through his Advocate ?

Ans. Yes. Such a power is usually exercised under Section 317 (1) Cr.P.C., invariably on an application filed by the accused by giving an undertaking to the effect that –

· the trial may be conducted during his absence. (Here the accused is forfeiting his right under Section 273 Cr.P.C.)

· his counsel may be permitted to represent him in Court during his absence and

that he will not raise any question of identity i.e. he will not thereafter turn round and contend that he was not identified by the prosecution witnesses. (Vide U.P. Pollution Control Board v. Mohan Meakins Ltd - AIR 2000 SC 1456 = (2000) 3 SCC 745 – K. T. Thomas, M. B. Shah – JJ and Bhaskar Industries Ltd., v. Bhiwani Denim & Apparels Ltd. - AIR 2001 SC 3625 = (2001) 7 SCC 401 – K. T. Thomas, K. G. Balakrishnan - JJ).

Part 21: Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XXI

Part 20: Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XX

Part 19: Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XIX