QUESTION NO.2
Cognizance: Sessions judge directly taking cognizance: impact
This procedure alone has to be followed in this case, unless the Act is amended, empowering or conferring power upon the court of Sessions to take cognizance of the offence directly, as indicated by me comparing the provisions available in other Acts viz., the P.C Act, E.C Act, TNPID Act. If the above procedures are not followed and if the Sessions Court has taken cognizance then the Madras High Court further held that on this ground alone quashing of proceedings may not be possible, and, if at all a direction could be given to the court concerned, to send the complaint to the Judicial Magistrate concerned, having jurisdiction to commit the case, if offences are made out [Dr.S.Sourubarani and Dr.S.Akila vs. C.Selvi – 2005-1-LW (Cri) 139 (Mad)].
Cognizance: Sessions court: part cognizance
It is well settled that cognizance of an offence can only be taken once. In the event, the Magistrate takes cognizance of the offence and then commits the case to the court of session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of section 209 Cr.P.C will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the court of Session finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Court of Session [Dharam Pal & Others vs. State of Haryana – AIR 2013 SC 3018=2013(9) SCALE 207=2013 Cr.L.J 3900 (SC)=2013(2) LW (Cri) 417 (SC)=2013 MLJ (Cri) 444 (SC)].
Cognizance: Wrong cognizance by special court & retrial
On a plain reading of the section 193 Cr.P.C, it is clear as noon day that no Court of Session can take cognizance of any offence as a court of original jurisdiction except as otherwise expressly provided by the Code or any other law for the time being in force. The question whether the Special Court is Court of sessions; and whether there is any special provision in the Act (especially under the Act like SC & ST Act enabling the said court to take cognizance. Supreme Court reiterated the passage from Gangula Ashok and another v. State of A.P [following A.R.Antulay v. Ramdas Sriniwas Nayak and another and Directorate of Enforcement v. Deepak Mahajan and another ] in Vidyadharan v. state of Kerala and Moly and another , held that the Special Judge under the Act cannot entertain a complaint filed before it and issue process after taking cognizance without the case being committed to it for trial by the competent Magistrate. After careful perusal of the aforesaid decisions, we have no scintilla of doubt that the view expressed which has a base of commonality is absolutely to dwell upon the same more so when there is no cavil or conflict in this regard can there has been no reference on the said score. Additionally, no doubt has been expressed relating to the exposition of the said view, and irrefragably correctly so. Now Supreme Court in State of M.P v. Bhooraji and others after referring sections 462 and 465 of the Code of Criminal procedures and adverted to the concept of ‘a failure of justice’ and held that, but if a specified Sessions court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following said course. Supreme Court in the above said case further held that we repeatedly asked the learned counsel for the accused to tell us what advantage the accused would secure if the case is sent back to the Magistrate’s court merely for the purpose of retransmission of the records to the Sessions Court through a committal order. We did not get any satisfactory answer to the above query put to the counsel. After so stating, the court proceeded to deal with the stance whether the special judge as a court of session would remain incompetent to try the case until the case is committed and, after critical ratiocination, declined to accept the said stand and opined that the expression “a court of competent jurisdiction” as envisaged in section 465 of the Code of Criminal Procedure is to denote a validly constituted court conferred with the jurisdiction to try the offence or offences and such a court could not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non-compliance with the procedural requirement. After adverting to the concept of failure of justice, it is obligatory to dwell upon the aspect whether there is or can be any failure of justice if a special judge directly takes cognizance of an offence under the Act. Supreme court in Rattiram v. State of M.P [3 judges bench] after discussed the above concluded that tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally in-apposite and inappropriate to hold that such non-compliance vitiates the trial. Supreme Court in the above said case further observed about the victim of the offence that under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been ‘failure of justice’ or ‘prejudice’ has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regarded and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim’s right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice. With the above observation Supreme Court in Rattiram v. state of M.P [(2012) 2 MLJ (Cri) 627 (SC)] finally promulgated that the decisions rendered in Moly and another and vidyadharan v. state of kerala have not noted the decision in state of M.P v. Bhooraji and others, a binding precedent, and hence they are per incurium.
Answer: It cannot be said that the Sessions court cannot take cognizance directly. If the Sessions court has Original jurisdiction to the offence such as TNPID, P.C Act, POCSO, S.C/S.T Act e.t.c… of course it can directly take cognizance (if the law permits) without committal from the Magistrate. But, for other Acts since there is no second cognizance concept or taking two cognizance for an offence, though there is a specific provision u/s 193 Cr.P.C, the Sessions court cannot take cognizance again for the offence for which cognizance was already taken by the committal Magistrate (ref: above judgments).
