Naba Kumar Sarania vs State Of Assam And Anr

Arun Dev Choudhury, J

This matter is specially assigned to this Bench by Hon’ble the Chief Justice in terms of the direction of the Hon’ble Apex Court in Ashwini Kumar Upadhyay Vs. Union of India reported in 2023 SCC Online SC 1463 as the petitioner herein is a former Legislator.

Heard Mr. R Sarma, learned counsel for the petitioner. Also heard Mr. K. Gogoi, the learned Public Prosecutor of Assam. None appears for the respondent No. 2, though the name of the counsel for the said respondent is reflected in the cause list, and the learned counsel appeared on the last occasion.

The present application under Section 528 of the BNSS, 2023, has been filed by the petitioner, praying for the quashing of CR case No. 40/2024, which was registered based on a protest petition being No. 419/2024 filed by the respondent No. 2.

The fact in a nutshell is that the respondent No. 2 lodged an FIR before the Officer-in-Charge, Kokrajhar Police Station, on 07.01.2020, alleging that the petitioner had attempted to promote a feeling of enmity, hatred or ill will against members of the Schedule Tribes in the BTAD area.

On receipt of said FIR, Kokrajhar Police Station case No. 17/2020 was registered under Section 3(1)(u) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and under Section 153(A) of IPC.

After completion of the investigation, a closure report dated 30.06.2023 was submitted before the jurisdictional Magistrate i.e. learned CJM, Kokrajhar citing that the case is related to a civil dispute due to political issues of the BTAD area; there is no evidence to charge the accused under Section 3(1)(u) of the Act, 1989 and Section 153(A) of the IPC.

The respondent No. 2 filed a Naraji/ Protest Petition before the learned CJM, Kokrajhar vide petition No. 419/2024 dated 15.03.2024, which was registered as CR 40/2024.

Initial deposition of the complainant and witnesses was recorded. Thereafter, under the impugned order dated 22.10.2024, having prima-facie satisfaction of commission of offence under Section 3 (1) (u) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, read with Section 153(A) of the IPC, were taken and processes were issued. Being aggrieved, the present application is filed.

Mr. Sarma, the learned counsel for the petitioner, contends that the order of cognizance is wholly without jurisdiction. It is submitted that under Section 14 of the Act, 1989, jurisdiction to take cognizance of offences under the Act, 1989 vests exclusively in the Special Court constituted under the said Act and the Magistrate is not empowered to assume such jurisdiction.

Mr. Gogoi, learned Public Prosecutor, though is a formal party in the context that a CR case has been registered, however, he, on the question of law, has submitted that under Section 14, the Magistrate shall not have power to take cognizance and/ or to issue process against the accused; however, even it is held that the Magistrate is having no jurisdiction to take cognizance of the offence, such irregularities do not vitiate the proceeding. According to him, the interest of justice would be met, if after interfering with the order of cognizance, the records may be directed to be transferred to the jurisdictional special judge, so that the jurisdictional special judge can consider the matter including the Naraji petition filed by the respondent No. 2. In support, Mr. Gogoi places reliance of the Hon’ble Apex Court in Shantaben Bhurabhai Bhuriya vs Anand Athabhai Chaudhari and Others reported in (2022) 15 SCC 228 and judgment of the Punjab & Haryana High Court in Nar Singh vs. State of Haryana and Anr. reported in (2022) SCC Online Punjab and Haryana 4068.

I have given due consideration to the arguments advanced. Also pursued the records.

Section 14 of the Act, 1989 as amended, provides that for the purpose of offering a speedy trial, the State Government shall, with the concurrence of the Hon’ble Chief Justice of the High Court, establish a Court of Session to be a Special Court to try offences under this Act. The statutory scheme thus contemplates that cognizance of offences under the Act is to be taken by the Special Court.

It is submitted by Mr. Gogoi that such court has already been constituted in the State of Assam in consultation with the High Court.

There is no doubt in the court's mind that, under Section 173(2) Cr.P.C., a police report is to be submitted to the jurisdictional Magistrate, empowered to take cognizance. Thereafter, the Magistrate is vested with jurisdiction either to accept the report, reject it or direct further investigation. However, insofar as offences under the Act, 1989 are concerned, the Magistrate’s jurisdiction stands curtailed to that extent and cognizance is to be taken by the Special Court.

The Hon’ble Apex Court, in a long line of decisions, held that when a special statute provides for a special forum, the general jurisdiction of a Magistrate is ousted to that extent.

In the present case, the Magistrate ought to have forwarded the same to a Special Court for appropriate action, for the reason that he had no authority to take cognizance of the offences under Section 3(1)(u) of the Act.

Accordingly, the impugned order dated 22.10.2024 stands set aside and quashed. The learned Magistrate shall transmit the record of Kokrajhar PS case no. 17/2020, including the Naraji petition filed by the respondent No. 2, to the court of Special Judge, Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989, Kokrajhar. Thereafter, the learned Special Judge may proceed in accordance with the law.

It is made clear that as the petitioner is a former Legislator, the learned Special Judge shall take measures to expeditiously disposal, in terms of direction issued by the Hon’ble Apex Court in Ashwini Kumar

Upadhyay vs. Union of India (supra).