COGNIZANCE BY THE SPECIAL COURT IN HUMAN RIGHTS VIOLATION CASES. WHETHER COMMITTAL IS MANDATORY?

 

COGNIZANCE BY THE SPECIAL COURT IN HUMAN RIGHTS VIOLATION CASES. WHETHER COMMITTAL IS MANDATORY?

Introduction :

In this article, power of the Special Court constituted under the Human Rights Act in taking cognizance directly on the complaint or on the final report alleging human rights violation has been discussed.

Discussion :-

The topic can be analyzed on the following sub-headings:-

1) Meaning of Human Rights

2) Meaning of Complaint

3) Human rights and constitutional rights –

whether one and the same?

4) Special Court

5) Meaning of Taking cognizance

1. HUMAN RIGHTS :-

 

Section 2(d) of the Protection of Human Rights Act, 1993 defines ‘Human Rights’ as under :

“Human Rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenants and enforceable by Courts in India.

2. COMPLAINT :-

Section 2(d) Cr.P.C., defines complaint – Section 2(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

It is pertinent to be pointed-out that the term complaint has not been defined under the Protection of Human Rights Act, 1993. It is equally important to be pointed-out here that the Regulation No.2(c) of State Human Rights Commission, Tamil Nadu (Procedure) Regulations, 1997 defines complaint. According to Regulation 2(c), complaint means, all petitions or communications received by the Commission from a victim or any other person on behalf of the victim either in person, post, telegram, fax or any other means alleging violation or abetment or negligence in the prevention of such violation by a public servant, are all any of the human rights defined in Section 2(d) r/w. Section 21(5) of the Act. The major difference between the complaint as defined under Section 2(d) Cr.P.C., and the complaint as per Regulation No. 2(c) is that the former complaint is the complaint that can be filed only before the learned Judicial Magistrate having jurisdiction and human rights violation and other offences can be taken cognizance of only by the Judicial Magistrate on the complaint u/s. 200 Cr.P.C. The learned Judicial Magistrate can take cognizance of offences and can commit the same to the Special Court for trial.

On the complaint as set out in Regulation No. 2(c) of State Human Rights Commission, Tamil Nadu (Procedure) Regulations, 1997, the State Human Rights Commission can hold enquiry but cannot punish the offender and no cognizance of offences can be taken by the State Human Rights Commission.

In the judgment reported in [Peoples of Union of Civil Liberities and another Vs State of Maharastra] there was a reference about the complaint in paragraph 31.16, the same is extracted hereunder:

“If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as abovementioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the Sessions Judge concerned shall look into the merits of the complaint and address the grievances raised thereon”.

Now, the point for consideration is that the complaint as referred to above is the complaint u/s. 2(d) Cr.P.C., or the complaint in the common sense, the same question has been placed before the Division Bench of Madras High Court by a reference u/s. 395(2) Cr.P.C. by the learned Principal Sessions Judge, Tirunelveli. The same was answered by the Division Bench headed by His Lordship Mr. Justice S. Nagamuthu in Esakkiammal Vs. State by the Inspector of Police, CBCID., Tirunelveli.

It has been held in the above case that the term “Complaint” as employed in Paragraph No.31.16 of the Judgment cannot be misconstrued as though the Hon’ble Supreme Court has meant the same to be a complaint, as defined in Section 2 of the Code. Here, the term ‘complaint’ has been used by the Hon’ble Supreme Court in its ordinary sense, which should be understood to mean either as “a representation” or “ a petition” and not as a complaint in stricto sensa, as defined in Section 2 of the Code. On receiving the said representation (complaint), the learned Sessions Judge cannot take cognizance of any offence, but ……..

 (2014) 10 SCC 635 Thus, the ‘complaint’ means complaint as defined under Section 2(d) Cr.P.C.

3. HUMAN RIGHTS AND CONSTITUTIONAL RIGHTS – WHETHER ONE AND THE SAME?

Section 2(d) of the Protection of Human Rights Act, 1993 defines ‘Human Rights’ as under :

“Human Rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenants and enforceable by Courts in India.

Larger meaning has been given to Human Rights in the definition clause in the Human Rights Act, 1993. All the rights guaranteed under Constitution are all Human rights.

4. SPECIAL COURT :

Section 30 of the Protection of Human Rights Act, 1993 defines the Human Rights Courts. According to the Section 30 of the Act, all the offences arising out of violation of human rights shall be tried by a Special Court for easy reference Section 30 is extracted hereunder.

Section 30 of Protection of Human Rights Act – For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Governments may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district, a Court of Session to be a Human Rights Court to try the said offences : Provided that nothing in this section shall apply if –

(a) A Court of Sessions is already specified as a special Court or

(b) A Special Court is already constituted

for such offences under any other law for the time being in force.

PROCEDURE TO BE FOLLOWED BY THE SPECIAL COURT UNDER HUMAN RIGHTS ACT.

The Code of Criminal Procedure, 1973 is applicable in trial of cases arising out of violation of Human rights.

Tamil Nadu Pazhankudi Makkal Sangam Vs. Government of Tamil Nadu – Crl.R.C.No.868 of 1996 – Madras High Court.         CAN SPECIAL COURT TAKE COGNIZANCE ON COMPLAINT OF HUMAN RIGHTS VIOLATION :-

According to Section 30 of the Act, a Court of Session shall be the special Court to try all the offences arising out of violation of human rights.

Section 193 Cr.P.C. is a bar for a Court of Session to take cognizance of offences directly. For easy reference, Section 193 Cr.P.C., is extracted below :

193. Cognizance of offences by Courts of Session :- 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.

A pertinent question will arise, whether the bar created under Section 193 Cr.P.C., is absolute? whether all special Courts are absolutely prohibited from taking cognizance directly.

The bar created u/s. 193 Cr.P.C is not absolute. The above section clearly says that if any other law for the time being in force permits to take cognizance directly, cognizance can be taken directly by the Special Court without the case being committed by the Magistrate. In the light of the above discussion, the author intends to compare the Special Court under Human Rights Act with the (1) Special Court under NDPS Act, (2) Special Court under Prevention of Corruption Act, (3) Special Court under POCSO Act, (4) Special Court under SC/ST Act.

In order to have a comparative study of all the above Special Courts, it is just and necessary to refer the relevant provisions conferring right to constitute Special Courts.

(i) Special Court under NDPS Act :-

Section 36-(A) – offences triable by Special Courts – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 …… (a), (b), (c)

(d) A Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in this behalf, take cognizance of that offence without the accused being committed to it for trial. Hence, it is made clear that this Special Court constituted under Section 36 of NDPS Act is a Court of Session and the Special Court can take cognizance directly. Since Section 36(A) of NDPS Act starts with “notwithstanding any thing contained in the Code of Criminal Procedure, 1973 coupled with enabling provision in Clause (d) which empowers the Special Court to take cognizance without the case being committed to it by a Magistrate. Thus, there is no bar for the Special Court to take cognizance directly on the final report or in the complaint of authorized officer.

(ii) Special Court under Prevention of Corruption Act :

Section 5 – Procedure and Powers of Special Judge – (1) a Special Judge may take cognizance of offences without the accused being committed to him for trial ….. by the Magistrate.

Since the lawmakers have clearly coined the above provision giving powers to the Special Court to take cognizance directly, the bar created u/s. 193 Cr.P.C., is not applicable to the Special Court under Prevention of Corruption Act.

[Essar Teleholdings Ltd., Vs. Registrar General, Delhi High Court and others]

The Hon’ble Supreme Court has held as follows:

The Special Judge alone can take cognizance of the offence specified in sub-section (1) of Section 3 and conspiracy in relation to them.

Thus, the bar u/s. 193 Cr.P.C is not applicable to the Special Court under the Prevention of Corruption Act.

(iii) Special Court under POCSO Act :-

Section 33 – Procedure and powers of Special Court – (1) A special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.

Since, special power has been given by the statute to take cognizance directly on the complaint or final report, the Special count under POCSO Act can very well take cognizance without the case being committed by the Magistrate.

2. 2013(8) SCC 1 [P. Shanmugaraja Vs. State]

Division Bench of Madras High Court.

On the reference made by the Mahila Court, Tiruchirappalli, the Division Bench of Madras High Court has held that the Mahila Court can take cognizance directly without committal by the Judicial Magistrate in view of Section 33 of the POCSO Act.

iv) Special Court under the SC/ST Act :-

Section 14 – Special Court and Exclusive Special Court – (1) For the purpose of providing for speedy trial ……

Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.

Thus, in the above Act also, power has been given to the Special Court to take cognizance directly without committal by the Magistrate.

Now, we can compare the language of Section 30 of Human Rights Act constituting Special Court with the above provisions constituting Special Court.

In Section 30 of Human Rights Act, the exclusion of committal by the Magistrate has not been coined as that of other enactments referred above. Hence, the Special Courts constituted u/s. 30 of Protection of Human Rights Act, 1993 cannot take cognizance directly either on the complaint or on the final report. Section 193 Cr.P.C. is a bar for the Special Court under the Protection of Human Rights Act.

A Court of Session has no original jurisdiction, unless a case is committed to it, Sessions Court cannot take cognizance directly.

[Shanawaz Vs. Manian & others ]

[Dharam Pal Vs. State of Haryana]

The Human Rights Court, being a Court of Session for the trial of offences under Human Rights Act, has no power to take cognizance of offence as a Court of Original Jurisdiction the case was committed to it by Judicial Magistrate.

 2014(1) TNLR 508

 (2000)2 MLJ Crl.266

 (2014)3 SCC 306

5. TAKING COGNIZANCE:-

Section 190 Cr.P.C., defines taking cognizance. For easy reference and better appreciation, Section 190 Cr.P.C., is extracted here under.

190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence –

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

It is to be pointed-out here that what action of the learned Judicial Magistrate would amount to taking cognizance has not been defined. Taking cognizance does not involve any formal action of any kind. It occurs as soon as the learned Judicial Magistrate applies his judicial mind into the facts of the case. [S.K. Sinka, Chief Enforcement Officer Vs. Videocon International Ltd.]

CONCLUSION :-

Thus, it is made clear as discussed above that the Special Court constituted for trial of offences of Human Rights violation has no power to take cognizance of offences directly in view of clear bar created u/s. 193 Cr.P.C.

 AIR 2008 SC 1213