 there could not be anyone who can explain things in a subtle manner and in a simplified manner. The overview of the schedule cast and schedule tribes prevention of atrocities act 1989 has traversed through various judgments as well as I would say law to that effect how it has traveled and how is the legal journey and what is the scope within the Bales criminal law and all other aspects is a topic which we all know that Mr when there is Mr. Esa Somashekar a former district judge principal district judge from Bangalore is the best thing to be understood and we know that despite his busy schedule with the academy and his passion for taking academics we always keep on pressing with him and he's always kind enough to take time for us and share his knowledge and without taking much time I would request sir to share his insights on this particular topic overview sir thank you very much good evening friends the topic for discussion this evening is schedule cast and schedule tribes prevention of atrocities act 1989 for the benefit of those who are not aware of the earlier enactments I would like to tell you that earlier we had the untouchability act thereafter it was amended as protection of civil rights act 1955 the rather it was not amended the title was changed as protection of civil rights act 1955 I do not know the position elsewhere in the country in so far as the state of Karnataka is concerned the police after the enactment of the atrocities act of 1989 very rarely invoke the provisions of the protection of civil rights act 1955 in a workshop I had in Mandia a district headquarter in Karnataka about 10 or 12 years back I told the SP of the district that protection of civil rights act is not revealed by the schedule cast and schedule tribes prevention of atrocities act 1989 maybe some offenses overlap but there are certain independent offenses also therefore it is high time that the police find invoke the provisions of the protection of civil rights act also if they find that the offense falls within the ambit of the enactment of course when he was the SP I did find in a few cases the provisions of the protection of civil rights act also having been included I am not dealing with the protection of civil rights act 1955 the reason is in my days it was tribal by a magistrate probably the situation is the same since hardly the provisions of that act are invoked I have also not brushed up my knowledge with regard to the act of 1955 you will confine what especially this day to the act of 1989 which has this as its title the schedule cast and the schedule types prevention of atrocities act 1989 it is a piece of social legislation whenever any provision of the enactment calls for interpretation in the sense that the provision is not very clear court should would naturally lean in favor of an interpretation which serves as the object of the enactment this is the premise on which the court proceeds whenever it finds that a provision of the law requires an interpretation this you may keep in mind now we will take a few important definitions first and then go to the procedure to be followed with regard to the trial of the cases provisions regarding anticipatory by and other aspects the word atrocity is defined in section 2 a as what as an offense punishable under section 3 therefore unless you go to section 3 you will not be able to know the meaning of the word atrocity what is that atrocity as defined under section 3 is not actually defined under section 3 it is an offense punishable under section 3 therefore whatever happens is punishable under section 3 is an atrocity what are those offenses now section 3 has two subsections 1 and 2 in subsection 1 we have clauses commencing from a to z a there are a few insertions also in between so there are about 26 to 27 clauses all those acts refer to in those clauses a to z a to z a of subsection 1 of section 3 is an offense punishable under this act and therefore it is an atrocity similarly subsection 2 has 7 sub clauses of course 5 a is also included totally would be 8 sub clauses acts refer to in these sub clauses constitute an offense and therefore by section 2 they they are also atrocities the word atrocity as such is not defined it is stated that it is an offense punishable under section 3 of the act then we have a code that is CRPC who is a dependent there is one thing known as exclusive special court and special court i will come to that later with regard to the definition of a public servant section 2 small bg says a public servant has defined into section 21 ipc as well as any other person demould to be a public servant and any other law for the time being enforced and includes any person acting in his official capacity under the central government or the state government another important definition is scheduled caste and scheduled tribes shall have the meanings assigned to them respectively under clause 24 and 25 of article 3 and 66 of the constitution then we have the definition of the word victim means any individual who falls within the definition of the scheduled caste and scheduled tribes and who has suffered or experienced physical mental psychological emotional or monetary harm or harm to his property as a result of the commission of any offense under this act and includes his relatives legal guardian and legal years then we have one general definition which says words and expressions used but not defined in this act and defined in the indian penal code the indian evidence act or the court of criminal procedure as the case may be shall be demoted have the meanings respectively assigned to them in those enactments therefore whenever a question arises as to what is the meaning to be attached you will have to necessarily look to IPC CRPC and evidence act if those expressions are also found there otherwise the expression will have a meaning given under this act straight away I will deal with one aspect of the matter the act says a person is a scheduled be gone he can be said to belong to scheduled caste or scheduled tribe and the meaning given is class 24 and class 25 of article 366 of the constitution one question would arise supposing a person who belongs to scheduled caste or scheduled tribe gets himself or converted to a different religion altogether will have will he or she sees to be a victim under the enactment by birth he or she is a person belonging to scheduled caste or scheduled tribe later converts himself or herself to Christianity for any other religion for that matter whether by such conversion can she be said to have lost can she be said to be not a victim under this act this has been covered by a decision of the supreme court a three judges decision in state of kerala versus chandra mohanan state of kerala versus chandra mohanan reported in a year 2004 supreme court 1672 a year 2004 supreme court 1672 verify the judgment the question has to whether a person is a member of the tribe or has been accepted as such despite his conversion to another religion he is essentially a question of fact a member of a tribe despite his change in the religion may remain a member of the tribe if he continues to follow the tribal tribes and customs if he is considered to be a member of the scheduled caste he has to be accepted by the community then in para 20 the legal position is summarized we therefore are the opinion that although as a broad proposition of law it cannot be accepted that merely by change of religion person ceases to be a member of scheduled tribe but the question has to whether he ceases to be a member thereof or not must be determined by the appropriate airport as such a question would depend upon the facts of each case in such a situation it has to be established that a person who has embraced another religion is still suffering from social disability and also following the customs and tradition of the community to which she earlier belong now let us take a case where the prosecution lodges the charge sheet on the ground yet the victim in the case was a person belonging to scheduled caste or scheduled tribe the accused takes a defense that he has converted himself to some other religion he is no longer a person belonging to scheduled caste or scheduled tribe here he has admitted that at one point of time he belong to scheduled caste or scheduled tribe he has changed the religion itself by such stand alone the prosecution case will not fail even after such conversion has he suffered that disability did the disability continue even after such conversion it is a question of fact and therefore a defense in such a vacuum I would not help the accused in any way nor become the case of the prosecution now we have seen some important definitions we have seen the effect of conversion of course which are those offenses I will take it up to the end because there are number of offenses nobody can remember it I will just take you a cursory glance to it we will first anyway any prosecution starts with investigation first I usually say this there are three persons involved in a criminal case one is the cook that is the police that is the investigating officer he prepares the food other is the person who serves the food that is the public prosecutor he serves the food prepared by the investigating officer third is the person who eats the food that is the judge what is the role of the defense there the defense lawyer would caution the judge saying that the food prepared by the investigating officer and served by the public prosecutor is not all that healthy not all that tasty be a little careful before you consume the entire lot he puts the court on top that is what we court is required to its appreciate in the case of the prosecution can be taken at its face value or is there anything which needs to be issued this is not just common this is not peculiar to the scheduled tasks and scheduled types prevention of atrocities that is the position with regard to any offense and any other enactment so we will see who can investigate this is a very important thing now as usual like in any other enactment which provides for framing of rules section 23 of this act also empowers the central government to frame rules to it for carrying out the purpose of this act accordingly we have the 1995 rules told the schedule cash and the schedule tribes prevention of atrocities rules 1995 I repeat schedule cash and schedule tribes within brackets prevention of atrocities rules 1995 rules seven speeds of this who can be an investigating officer an offense committed under this act shall be investigated by a police officer not below the rank of a deputy superintendent of police this is the mandate of law the investigating officer under this act should be a police officer who is not below the rank of a dysp the investigating officer shall be appointed by the state government or the director general of police or the superintendent of police who after taking into account his past experience sense of ability and justice to pursue the implications of the case and investigate it along right lines within the shortest possible time all and sundry cannot be appointed as investigating the officers merely because he's a police officer of the cadre of dysp it is the state government or the dgp or the sp who appoints such an investigating officer while doing so what is it that the appointing authority has to take into consideration the past experience of the proposed investigating officer his sense of ability and justice to pursue the implications of the case and the ability to carry on the investigation on right lines within the shortest possible time these things will have to be kept in view while appointing an investigating officer under this act what is it that the investigating officer so appointed is required to do that takes us to sub rule 2 the investigating officer so appointed under sub rule 1 shall complete the investigation on top priority submit the report to the superintendent of police who in turn shall immediately provide the report to the director general of police or commissioner of police or the state government and the officer in charge of the concerned police station shall file the char sheet in the special court or the exclusive special court within a period of 60 days the period is inclusive of investigation and filing to the char sheet the delay if any in investigation or filing of char sheet in accordance with sub rule 2 shall be explained in writing by the investigating officer here I stop for a while and digress a little there are many enactments which require investigation to be completed within a given time and final report is fine there is some confusion in the legal fraternity that that is the time limit for taking court business there are two different things and obligation is tasked on investigating the officer to complete the investigation in a given time of course as far as the present enactment is concerned he is also required to give an explanation as in writing as to why there was the delay many enactments have such a provision take it from me that is not the time limit for the court to take part business that takes us to the provisions of CRPC unguess the special enactment itself says not which stand in anything contained in the criminal procedure court no court shall take court business of an offense if the final report is filed after a particular time that is not the purport of any enactment so taking court business is under the domain of the criminal procedure court whereas submission of a charge sheet within a given time is this so let there be no confusion about this merely because the charge sheet is not filed within the time limited within the time provided by this enactment that cannot be a ground to say that the court cannot take part business what does it say shall submit the report to the police who in turn shall do it within a period of 60 days so merely because the charge sheet is not filed within 60 days it will not preclude the court from taking part business that takes us to section 468 CRPC that takes us to the offense that tells if the offense is punishable it fine six months is the period of limitation if it is punishable for a term not exceeding one year one year if it is more one year and more but not exceeding three years three years if it is anything beyond three years there is no period of limitation at all so therefore let us not confuse this aspect of limitation with the requirement of law that the investigating officer should submit the charge sheet within a given time what is the consequence of failure of the investigating officer to submit the final report within time i think the department takes care of that court will not look into it the court will see whether the charge sheet is presented within the time provided by the criminal procedure court then please go to section nine of the act we are on the aspect of investigation who can be investigated officer section nine is equally imparted confirmant of powers notwithstanding anything contained in the court or in any other provision of this act the state government may may if it considers it necessary or experienced so to do for the prevention of and for coping with any offense under this act or for any case or class or group of cases under this act in any district or part whereof confirm by notification in the official cassette on any officer of the state government the powers excelsisable by a police officer under the court in such district or part whereof or as the case may be for such case or class or group of cases and in particular the powers of arrest investigation and prosecution of persons before any special court all officers of police and uh that we just not necessary for us so rule seven of nineteen ninety five rules requires that the investigating the officer shall be a person not below the rank of dysp but section nine says that the government for a given case may appoint any police officer for investigation for a group of cases it can do in a particular district it can do in this regard two decisions of the supreme court are in place the first one of them is in state of bihar versus anil kumar state of bihar versus anil kumar reported in a year 2017 supreme court 272716 a year 2017 supreme court 2716 now the bihar in in that case being involved by section nine the state government had interested the power of investigation to an officer not below the rank of deputy superintendent of police and therefore ultimately the supreme court held that the state government had power to invest the power of investigation to any officer below the caterer of a dy sp and therefore there was nothing wrong in that now a latest decision of the supreme court may also be perused 2020 two scc 577 2020 two scc 577 state of madhya pradesh versus babbu rathore bapbu babbu rathore you see in this case what happened was rules were frail i mean rules had been frail and a notification was also issued empowering the power to investigate offenses under the sat with effort from a particular date but the offense in question had but the offense in question had taken place prior to the date on which this notification was issued ultimately the supreme court said along with the offenses under the along with the offenses under the act certain offenses under ipc were also included in the charge sheet therefore the supreme court said that though in respect of the offense under the act the court cannot proceed because investigation was done by a police officer now below the rank of dy sp and the notification was later in respect of ipc offenses there is absolutely no God to go ahead with the matter and this decision of 2022 scc 577 an earlier decision reported in 2009 12 scc 649 2009 12 scc 649 state of madhya pradesh versus junilal has been referred to and followed please go to section 14 of the act special court and exclusive special court this exclusive special court is by way of an amendment which came into force in the year 2016 earlier it was only a special court for the purpose of providing for speedy trial the state government shall with the tolerance of the chief justice of the high court by notification the official he said establish an exclusive special court for one or more districts that means no other case can be assigned to that court only cases under the act provided that in districts where less number of cases under this act is recorded the state government shall with the contents of the chief justice of the high court by notification the official he said specify for such districts the court of session to be a special court to try the offenses under this act so therefore other cases can be assigned to the special court as far as the exclusive special court is concerned other cases cannot be assigned if there are more cases in a particular area and exclusive special court have to be established elsewhere special courts will have to be established I said a special court is to be presided over by a judge of the caterer of sessions judges a court of session has to be designated as a special court all of you know that a court of session cannot take thoughtisms directly unless the case is committed to that court by the judicial magistrate of first class of the chief judicial magistrate as the case may be kindly refresh your memory by going to section 193 CRPC 193 except as otherwise provided expressly provided by this court or by any other law for the time being in force no court of session shall take thought reasons of any offense as a court of original jurisdiction unless the case has been committed to it by a magistrate under this court a court of session in your section 193 CRPC cannot directly take thought reasons of an offense the magistrate has to commit the case it is only there after the court of session will take thought reasons to my knowledge in the state of Karnataka at least if not elsewhere sometime back charge sheets used to be directly filed in the special court what happened was in Gangula Ashok Gangula Ashok versus state of Andhra Pradesh Gangula Ashok versus state of Andhra Pradesh reported in AER 2000 SC740 AER 2000 SC740 the honorable supreme court held that in view of section 193 CRPC a special court being a court of session would not take thought reasons directly unless it was unless the case was committed to it by the judicial magistrate the result therefore was even though the case had written the stage of arguments before the special court the records were sent back to the jurisdiction magistrate with the direction to formally pass an order of the middle that obviously caused a delay and therefore in the state of Karnataka an amendment was brought to section 14 saying the special court can take thought reasons under this act as a court of original jurisdiction that amendment is of the year 2003 Karnataka act number 35 of 2003 Karnataka brought about the amendment other states might have brought about that I am not very sure anyway we need not now worry because now there is a specific provision under the 2016 amendment that is the second proviso to subsection 1 of section 14 second proviso to subsection 1 of section 14 provided further that the court so established or specified shall have power to directly take thought reasons under this act therefore FIR can be submitted directly to the special court final report can also be submitted directly to the special court this is being followed in the state of Karnataka I will read section 14 again for the purpose of providing for speedy trail the state government shall with the contents of the chief justice of the high court by notification in the official case established an exclusive special court first proviso I have already read that is a special court can be established then the second proviso I have read subsection 2 it shall be the duty of the state government to establish adequate number of courts to ensure that cases under this act are disposed of within a period of two months as far as possible subsection 3 in every trial in the special court of the exclusive special court the proceeding shall be continued from day to day until all the witnesses in attendance have been examined unless the special court of the exclusive special court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing we have a similar provision under the criminal procedure court section 309 provided that when the trial relates to an offense under this act the trial shall as far as possible be completed within a period of two months from the date of filing of the charge sheet just as there's a mandate to the investigating officer to complete the investigation within a period of 60 days there's a similar mandate to the special judge also to complete the trial within a period of two months now one question would arise we have under the prevention of corruption act a specific provision which says that a special judge under the prevention of corruption act can along with the offenses under the act try offenses under other laws also there's an offense of forgery misappropriation and other things so charge sheet is fine as a public servant not only for an offense under the prevention of corruption act but also for certain other offenses under IPC or any other law there's a specific provision in the prevention of corruption act which empowers the special judge to try other offenses also while trying an offense under the prevention of corruption act there is no specific provision under the act which we are discussing today which says that the special court can also try offenses under other enactments if along with the offense under the act charge sheet is right for other offenses also I am not aware of any decision of India's High Court or the Supreme Court but way back in the year 1995 itself Karnataka High Court had an occasion to examine this question in state of Karnataka versus Nathappa state of Karnataka versus Nathappa reported in ILR 90 95 Karnataka 1361 ILR 90 95 Karnataka 1361 the Honorable High Court held that the special court under the schedule cashed in schedule tracks prevention of atrocities act can also try other offenses if with the charge sheet offenses under other laws are also included along with the offenses under this act in particular a famous statement at the supreme court in year Anpule versus Ramdas in year 1984 SC 780 has also been referred in that ILR 90 95 Karnataka 1361 then 14A is important appeals notwithstanding anything contained in the court of criminal procedure an appeal shall lie from any judgment sentence or order not being an interlocutory order of a special court or an exclusive special court to the High Court both on facts and on law under the criminal procedure code an appeal can lie only in only against certain orders certain sentences certain judgment of conviction or acquittal it's specified there beyond that no appeal lies but under 14A of this enactment any order which is not an interlocutory order any judgment sentence or order is appealable to the High Court subsection 2 notwithstanding anything contained in subsection 3 of section 378 CRPC an appeal shall lie to the High Court against an order of the special court or the exclusive special court granting the refusing bail whether bail is granted or refused an appeal lies under section 14A what's the normal position the magistrate does not grant bail under 437 an independent bail petition is filed under 439 in the court of sessions and if the court of sessions does not grant bail under 439 an independent bail petition under 439 is filed before the High Court but as far as this enactment is concerned if bail is refused or granted an appeal lies under section 14A to the High Court notwithstanding anything contained in any other law of the time being enforced if the appeal under the section shall be preferred within a period of 90 days from the date of the judgment sentence or order appealed from so limitation is 90 days provided that the High Court may entertain an appeal after the expiry of the set period of 90 days if it is satisfied that the appellant has sufficient cost for not preferring the appeal within the period of 90 days provided further that no appeal shall be entertained after the expiry of the period of 180 days so maximum is 180 days 90 days statutory limit then condensation of delay by other 90 days every appeal preferred under subsection 1 shall as far as possible be disposed of within a period of three months from the date of submission of the appeal so therefore there is no question of an application under section 5 of the limitation act for condensation of delay the application has to be under the proviso to section 14A the second proviso to section first proviso to section 14A of the act to condone the delay in filing any appeal then there is one important amendment brought to this enactment by act number 1 of 2016 with effort from 26 1 2016 it is chapter 4A rights of victims and witnesses chapter 4A has one section section 15 capital A this section 15 capital A has 12 subsections I don't read all of them I will read one or two only because it takes a good lot of time to read all that only important thing I will read section 15A it shall be the duty and responsibility of the state to make arrangements for the protection of victims their dependents and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence subsection 2 a victim shall be treated with fairness respect and dignity and with a due regard to any special need that arises because of the victims age or gender or occasional disadvantage or poverty third is important subsection 3 is important for practice in lawyers and also judges and public prosecutors a victim or his dependent shall have the right to reasonable accurate and timely notice of any court proceeding including any bail proceeding and the special public prosecutor of the state government shall inform the victim about any proceedings and to decide so it is the duty of the public prosecutor also to inform the victim or his dependent that a bail application is moved and that it is coming up for hearing subsection 4 a victim or his dependent shall have the right to apply to the special court or the exclusive special court as the case may be to seven parties for production of innate arguments or material witnesses are examined the persons present the normal rule is that it is the public prosecutor who is in charge of the case and it is the prosecution which takes up all responsibility under this enactment the victim or the dependent has a right to apply to the special court for summoning documents material objects and witnesses subsection 5 a victim or his dependent shall be entitled to be her subsection 3 says he is entitled to have notice of the bail application subsection 5 says he or she is entitled to be heard at any proceeding under this act in respect of bail discharge release parole conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction acquittal or sentencing under the provisions of CRPC a victim can engage a lawyer but the lawyer can only assist the public prosecutor he can't argue the matter on his own but that restriction is not here here the victim is entitled to be heard at any proceeding in respect of bail discharge release parole conviction sentence or any connected proceedings file written submissions on conviction acquittal or sentencing then subsection 4 notwithstanding anything contained the court of criminal procedure the special court of the exclusive special court trying a case and of this act shall provide to a victim his dependent informant or witnesses complete protection to secure the ends of justice trailing and maintenance expenses during investigation inquiry at trial social economic rehabilitation etc subsection 7 the state shall inform the concerned special court of the exclusive special court about the protection provided to any victim or his dependent so there are a number of such provisions which provide for and the subsection 10 is important all proceedings relating to offenses center of this act shall be video recorded then subsection 11 says pre copy of the FIR has to be given then immediate relief in cash or in trying to get to the victims of the atrocity necessary protection has to be given to the victims so a big list of do's and don'ts is given in subsection 11 of section 15 a which as and when an occasion arises you will read for yourself then we will go to section 7 for feature of property of certain persons where a person has been convicted of any offense punishable under this chapter the special court may in addition to awarding any punishment by order in writing declare that any property movable or immobile or both belong into the person which has been used for the commission of the defense shall stand for treated to the government of course we have provisions in CRPC also for future confiscation and all that there is a special provision here the property of the accused can be forfeited property of the accused which has been used for the commission of the offense shall stand forfeited to the government is mandated may in addition to awarding any punishment by order in writing that it shall stand forfeited then where any person is accused of any offense under this chapter it shall be open to the special court trying him to pass an order that all are any of the properties movable or immobile or both belong into him shall during the period of such trail be attached during the period of trial it can be attached and where such trail ends in conviction the property so attached shall be liable to forfeiture to the extent it is required for the purpose of realization of any fine imposed under this chapter so for realizing the fine amount it is necessary to sell the property which is attached then section 10 is another provision with which the special court is the result removal of person likely to commit an offense it is like a preventive measure the court normally steps in after the offense is committed and after the final report is filed but here there is a preventive measure normally that preventive measures are invested in the executive magistrates but under this enactment a court also enters the scene even before the commission of the even before the submission of the charge sheet but of course not submission of the charge sheet but it is like even before the trial let me direct myself where the special court is satisfied upon a complaint or a police report that a person is likely to commit an offense see that is likely to commit an offense I understand that it is likely to commit an offense under chapter two of this act in any area included in schedule areas or tribal years as referred to in article 244 of the constitution or any area identified under the provisions of class so on so on such into of 21 it may by order in writing direct such person to remove himself beyond the limits of such area by such route and within such time as to be specified in the order and not to return to that area from which he was directed to remove himself for such period not exceeding three years has been specified in the order this powers of externament order generally live in the executive magistrate but this is an enactment where such powers are given to the judiciary also the special court shall along with the order under subsection one communicate to the person directed at that subsection the grounds on which such order has been made the special court may rework or modify the order made under subsection one for the reasons to be retarded in writing on the representation made by the person against who such order has been made or by any other person on his behalf within 30 days from the date of the order limitation is 30 days then 11 is also important procedure and the failure of the person to remove himself from area and enter there on after removal if a person to whom a direction has been issued intersection 10 to remove himself from any area fails to remove himself as directed or having so removed himself enters such area which is the period specified in the order otherwise than the permission in writing to the special court at a subsection two the special court may cause him to be arrested and removed in police custody to such place outside such area as the special court may specify so if you re-enters without the permission of the special court the special court may direct the police to arrest him bring him under police custody and then send him outside that area the special court may by order in writing permit any person in respect of whom an order intersection 10 has been made to return to the area from which he was directed to remove himself for such temporary period and subject to such conditions has been specified in such order and may require him to execute a bond with or without surety for the due observation of the conditions imposed special court may at any time revoke any such permission so if he has misuse of the permission that permission can also be revoked any person who with such permission returns to the area from which he was directed to remove himself shall observe the conditions imposed and at the expiry of the temporary period for which he was permitted to return or on the rotation of such permission before the expiry of such temporary period shall remove himself outside such area and shall not return to within the unexpired portion specified under section 10 without a fresh permission if a person fails to observe any of the conditions imposed or to remove himself at allingly or having so removed himself enters or returns to such area without fresh permission the special court may cause him to be arrested and removed in police custody to such place outside such area as the special court may specify what I am trying to emphasize is the special court does not step in only after the FIR is submitted or the charge sheet is submitted even otherwise even before the trial special court has got certain powers under section 10 and 11 which you will kindly read when an occasion comes section 12 every person against two or order has been made under section 10 shall if so required with the special court allow his measurements and photographs to be taken by a police officer if any person referred to in subsection one required to allow him then required to allow his measurements or photographs to be taken resists or refuses to allow his taking of such measurements or photographs it shall be lawful to use all necessary means to secure the taking thereof he can't claim protection under article 20 here resistance to or refuse to allow the taking of measurements or photographs under subsection two shall be deemed to be an offense under section 186 of the Indian penal code where an order under section 10 is revoked all measurements of photographs taken under subsection two shall be destroyed or made over to the person against whom such order is made any person contravening an order on the special court made under section 10 shall be punishable with imprisonment for a term which may extend to one year and which five so these are certain powers of a special court apart from the powers of holding a trial and punishing the accused now as I said I will take will be taking up with the various offenses under the act at the end I am no more certain other aspects the provisions regarding anticipatory bail and then whether a preliminary inquiry has to be held these are certain important issues that need to be discussed now perhaps some of you may be knowing that the honorable Supreme Court in Dr. Subhash Trashinath Mahajan Dr. Subhash Trashinath Mahajan was a state of Maharashtra and another reported in 2086 SCC 454 2086 SCC 454 gave certain directions it said that before registration of a case a preliminary inquiry has to be done if it is the arrest of a public survey if it falls for arrest of a public servant his official superior should be informed and all that the state sought a review of his judgment and that is reported in 2020 4 SCC 761 2020 4 SCC 761 union of India versus state of Maharashtra the earlier judgment in which it was held that a preliminary inquiry had to be held was by two judges this union of India versus state of Maharashtra 2024 SCC 761 is by three judges the judgment was reviewed and it was held that preliminary inquiry was not contemplated except in cases specified in that famous Lalitha Kumari's case and the Supreme Court also observed that indirectly this decision in Dr. Subhash came in the wake of the implementation of section 18 which bars the rank of anticipatory bail so this is another important decision which we will have to follow now let us read section 18 first nothing in section 438 of the court shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offense under this act a plain reading of section 18 indicates that there is a bar for granting anticipatory bail to an accused to a person accused of an offense under this act we will see how the courts have interpreted a little later let us first understand the statutory provisions section 18 is a clear bar for granting anticipatory bail 18 a came to be inserted in view of the judgment in Dr. Subhash Tashinath Mahajan's case in fact it was the act itself was amended by act number the act was amended by act number 27 of 2080 with effort from 17 it was brought into force on 28 2080 the act number is 27 of 2080 the statement of objects and reasons reads like this in a recent judgment the supreme court has held that a preliminary inquiry shall be conducted by a dysp to find out whether the allegations made out a case under the said act before registering a first information report relating to commission upon offense and the approval upon appropriate authority should be obtained before arrest of any person in connection such offense so in view of this judgment of the honorable supreme court by act number 27 of 2080 that an amendments were brought and section 18 a is one insertion consequent upon that amendment we will see what that section 18 a is 18 a substantial one for the purposes of the act a preliminary inquiry shall not be required for registration of a first information report against any person or the investigating officer shall not require approval for the arrest if necessary of any person against whom an accusation of having committed an offense under the set has been made and no procedure other than the provided enter the set of the court shall apply subsection to the provisions of section 438 shall not apply to a case under the set not withstanding any judgment or order or direction of any court therefore a combined reading of section 18 and 18 a subsection to indicate that anticipatory pay is out of place in your give provisions themselves now let us see how the court has interpreted this provision from time to time we have that the famous villas pondering power versus state of Maharashtra reported in AER 2012 SC 3316 AER 2012 SC 3316 its SCC equivalent is 2012 8 SCC 795 2012 8 SCC 795 I am reading para 8 and 9 of this statement section 18 of the SCST act creates a bar for inverting section 438 in the court however a duty is cast on the court to verify the governments in the complaint and to find out whether an offense under section 3 one of the act has been private phase they made out in other words if there is a specific government in the complaint namely insult or intimidation with intent to humiliate by calling with cast name the accused persons are not entitled to anticipatory bail paranoid scope of section 18 of the act read with 438 is such that it creates a specific bar with a grant of anticipatory bail when an offense is registered against a person under the provisions of the act no court shall entertain application for anticipatory bail unless it primarily finds that such an offense is not made out moreover while considering the application for bail work for appreciation of evidence and other material and record is limited court is not expected to indulge in critical analysis of the evidence and record when a provision has been enacted in the special act to protect the persons who belong to the scheduled character schedule tribes and a bar has been imposed in granting bail under section 438 the provisions the special act cannot be easily brushed aside by elaborate discussion on the evidence this is the decision which was cited frequently at the by the prosecution this decision was subsequently followed in bachudas versus state of viha bachudas versus state of viha reported in 2014 three scc 471 2014 three scc 471 in this case after referring to this decision in we last pondered it is said if no prima facie case is made out then anticipatory bail can be granted if prima facie case is not if the prima facie case is there anticipatory bail has to be refused in fact the order of the high court granting anticipatory bail was set aside not only in ponderant velocity but also in but also in this bachu space then we have 2014 15 scc 521 2014 15 scc 521 this is Shakuntala Devi versus Baljeen Darsing Shakuntala Devi versus Baljeen Darsing again following Vila's ponderant power stage order of high court granting anticipatory bail was set aside then we have a year 2017 sc 1583 a year 2017 sc 1583 Manju Devi versus one Tarjit Singh Akhluvalia a year 2017 sc 1583 Manju Devi versus one Tarjit Singh Akhluvalia order granting anticipatory bail by the high court was set aside following Vila's ponderant power then we have 2024 scc 727 2024 scc 727 Prithvirat Chawan versus Union of India Prithvirat Chawan versus Union of India where it was held that if a complaint does not disclose a prima facie case section 18 is not a bar and arrest is not warranted if no prima facie case is made out 18 will not be a bar and arrest can be done this decision in 2024 scc 727 has been referred to in 2021 4 scc 733 Rahana Jalal versus state of Kerala of course the offense they render was under this mostly women protection of rights on marriage act but incidentally the provisions with atrocities that have also been referred to in that decision this is with regard to certain aspects regarding bail anticipatory bail the writer with him to be present at the time of here in the bail application consider the bail application and all that now let us have a quick look at the offense various types of offenses under the act I am not taking you in detail for that because number of acts are considered as atrocities and they are all offenses under this act you can't remember them as and when a charge sheet is spiked if you are the public prosecutor go through the charge sheet see the provision and see whether the ingredients are made out if you are appearing for the accused see whether those ingredients are made out and then argue there is no point in reading this I am only telling you section three has two subsections section three subsection one and subsection two the basic ingredients in all these cases is the accused the accused should not be a person belonging to scheduled cast or scheduled right the victim should be a person belonging to scheduled cast or scheduled right that is the criteria is a victim is a person belonging to some other cast obviously the offense is not made out is accused himself is a person belonging to scheduled cast or scheduled right then also the offense is not made out this you will have to keep in mind whoever not being a member of a scheduled cast or a scheduled right a big list is given convincing from a till z a a big list is given even in subclass said a a there are other classes capital a to capital d it goes up to zc i said z a it goes up to zc then subsection two again says whoever not being a member of a scheduled cast or a scheduled right one important amendment that is brought here is this before 2016 for certain offenses the requirement was that the accused committed that offense on the ground that the victim is a person belonging to scheduled cast or scheduled right that ministry I was required to be made out by the prosecution he did that act because the victim was a person belonging to scheduled cast or scheduled right now that requirement is not there now it only says commits any offense knowing that such person is a member of scheduled cast or scheduled right this is important therefore don't go by the earlier decisions it's saying that the prosecution has to establish that the accused did that act on the ground that the victim belonging to scheduled cast or scheduled right now by this 2016 amendment the only requirement for the prosecution is to show that the accused knew that the victim was a person belonging to scheduled cast or scheduled right then as far as public servants are concerned section four says neglect of certain duties is an offense therefore public servants also need to be very careful in doing this then we have section five enhanced punishment for subsequent in the case of subsequent conviction one more important provision is required to be noticed under section six it has said provisions of section 34 and 149 IPC that vicarious liability common intention and common object those provisions can be invoked for offenses under this act some offense under this act a red witch section 34 IPC red witch section 149 IPC so whoever shares that common intention or whoever is a member of that a lawful assembly sharing that common object he is also able to be punished then 80 is another provision which records the public prosecutors and the defense counsel need to know in a prosecution for an offense under this chapter that is chapter two if it is proved that the accused rendered any financial assistance to a person accused of or reasonably suspected of committing an offense under this chapter the special court shall pursue unless the contrary is proved that such person had abetted the offense so if the prosecution proves that the accused rendered any financial assistance to a person to commit that offense then it has to be presumed that the person who rendered financial assistance abetted the offense it is for him to report that presumption I did not abet a group of persons committed if it is proved that a group of persons committed an offense under this chapter and if it is proved that the offense committed was a sequel to any existing dispute regarding gland or any other matter it shall be pursued that the offense was committed in furtherance of the common intention or in prosecution of the common object 80 is also important in a prosecution for an offense under this chapter if it is proved that the accused was having personal knowledge the victim or his family the court shall pursue that the accused was aware of the cast or tribal identity of the victim unless the contrary is proved see there were some decisions it said that in the first information it was not mentioned that the accused knew that the person that the victim belonging to schedule cast or schedule right now the amendment is if the accused knew that person or his family then it is presumed that the accused also knew of his cast or identity this is another important provision which both defense lawyers prosecutors as well as judicial officers need to remember then section 90 is yet another section which is important it deals with non-applicability of the provisions of section 360 CRPC or the probation of offenders act the provisions of section 360 of the court and the provisions of the probation of offenders act shall not apply to any person above the age of 18 years who is found guilty of having committed an offense under the set of course is below 18 the juvenile justice there in protection of children act will take care of then when it comes to compensation if the offense is established what's the legal position needs to be noticed I find from my book section 357 CRPC has been amended by the states of Andhra Pradesh Bihar Goa, Karnataka, Majapravesh, Rajasthan, Uttar Pradesh, West Veda, of course my book gives this may be other states might have also amended section 357 says as per this amendment if the victim belongs to a person belonging to schedule cast or schedule right the court has to award some compensation in the event of conviction victim compensation is a subject by itself time is too insufficient to deal with the intricacies of section 357 which has three two important subsections 357 one and three and we have another section 357 year I don't want to club it here but just casually I will tell this under 357 one if fine is a part of the sentence out of the fine amount some compensation can be given to the victim supposing I direct this accused to pay a fine of rupees 25,000 I can say out of this 25,000 20,000 can be given as compensation to the victim in fact the entire fine amount can also be directed towards compensation under 357 three if fine is not a part of the sentence only imprisonment is a substantive sentence then in addition to imprisonment compensation can be given there are number of decisions given the distinction between 357 one and three this is not the occasion for me to tell it not there is time to do it 357 year is a provision which was inserted in the year 2009 victim compensation scheme each state government is required to frame a scheme called the victim compensation scheme some amounts are made available at the disposal of the state legal services authority to give compensation to the victims 357 year has a special feature under 357 the case has to necessarily end in conviction for the court to award compensation but under 357 year even if the case ends in acquittal or discharge if the court finds that the victim needs rehabilitation it can make a recommendation to the legal services authority to award compensation needless to say if the case ends in conviction and if the court comes to a conclusion that the victim needs rehabilitation then a direction and then not direction then a recommendation has to be made to the legal services authority to give compensation so if a private complaint is filed for reference under the set lawyers prosecuted that case may remember this even otherwise as I have already pointed out victim has a right to be heard therefore if you are engaged as a lawyer for the victim you should be aware of the provisions of section 357 and 357 A and B apart from this we have certain rules under the 1995 rules rule 12 4 rule 12 4 of schedule cast and schedule tribes prevention of atrocities rules 1995 the district magistrate or the subdivision magistrate or any other executive magistrate shall make a necessary administrative and other arrangements and provide relief in cash or in kind or both within seven days to the victim of atrocity their family members and dependents according to the scale as provided in annexure 1 read with annexure 2 of the schedule annex to these rules and such immediate relief shall also include food, water, clothing, shelter, medical aid, transport facilities and other essentials so annexure 1 and annexure 2 they will tell you what is the amount of monetary relief that can be given then rule 4 A for immediate withdrawal of money from the treasury so as to timely provide relief amount as specified in sub rule 4 the concerned state government or union territory administration may provide a necessary authorization and powers to the district magistrate 4 B the special court or the exclusive special court may also order socio-economic rehabilitation during investigation inquiry and trial as provided in cross see of sub section 6 of section 15 A then sub rule 5 the relief provided to the victim of the atrocity or his or her dependent under sub rule 4 in respect of death or injury or rape or gang rape or unnatural offenses or voluntarily crossing hurt by use of acid or voluntarily throwing the recommended to throw acid etc or damage to property shall be in addition to any other right to claim compensation respect thereof under any other law for the time being forced therefore even if compound so while awarding compensation under 357 or while recommending compensation under 357 A the court cannot say that the district magistrate has already given some compensation to go tell so this is all what I intended to say about this commitment thank you for the opportunity any questions yes somehow the chat is there's only one question and so it was disabled somehow and I have not been able to restart yes but on the YouTube we have it says is there any requirement of minimum number of witnesses that to non SCST to prove an offense under this act no no no okay and this is by Manoj Karma what is the punishment of lodging FIR under the SCST Act though not ultimately found to be maintainable in the scene the question is this if ultimately it is not maintainable in the sense there's no question of the FIR being not maintainable if the FIR disposes commission of an offense under the act the investigating officer is bound to register it otherwise he is also punishable under the act ultimately after trial if the court finds that the offense is not made out then the accused will have to be acquitted that's all that and CRPC provides if there is a case of wrongful arrest then the accused can also be compensated probably 300 ma'am one minute it is relevant provision 359 CRPCR so it says harder to pay cash in on compensation to persons boundlessly arrested then whether a supreme court judgment of Ram avatar was a state of MP can help of already going on ongoing reputations to pressurize that the FIR lodged under the SC Act will be treated as a civil matter and not under the SC ST Act I am not going on through the treatment okay whether after the expiry of two months of the FIR is possible if so under what conditions no the question is as I already said there is a requirement that the investigating officer should complete the investigation within two months but that does not mean that the court is prevented from taking cognizance limitation for taking cognizance is bound by the provisions of CRPC if the investigating officer is not able to complete the investigation in that period he has to give reasons ultimately the chiefs of his official superiors find that deliberately has not completed the investigation within the one time maybe departmentally he may be proceeded against but CRPC does not come in the way of the court taking cognizance if the charge sheet is fine within the time provided there and court also can turn down the delay under the relevant provisions of CRPC in case someone has filed a complaint under the SC ST Act eventually it is found that the cash certificate is forced as to then whether the atrocity case can be filed with false concordant ST Act or what the question is is the cash certificate is forced then no offense is made out the accused has to be acquitted whether the person against the person who has filed that complaint is to be prosecuted that is to be seen for malicious prosecution he may have to be prosecuted so these were the questions and we are enriched so somehow the questions have not come to that level which normally does arise because normally I used to speak on civil laws no this was as we discussed that day this is a very niche area because that's there's not much in the law slavery then there's not that much of litigation to that and only a few advocates practice on the criminal side no criminal side your sessions on the criminal sides are doing extremely well but this is a very what I say a few advocates practice on the criminal side only a few advocates practice on the criminal side that's a very niche area I'm saying yes the cases are not to that level so we can just have the last insights on 357 on victims compensation though we can take a session subsequently okay what you were saying for five minutes around five minutes you can give them some explanation on 357 see 357 says if the case ends in conviction and fine is imposed say 50000 rupees fine the entire fine amount may be given as compensation to the victim of the offense or a portion of the fine amount can be directed towards compensation the remaining amount goes to the state under 357 3 if fine is not a part of the sentence only if imprisonment is the sentence along with imprisonment compensation can also be given for the applicability of section 357 1 or 3 the case should necessarily end in conviction but as far as 357 is concerned even if the case ends in acquittal or discharge if the court thinks that the victim needs rehabilitation then the court can make a recommendation the court cannot fix the amount of compensation it can make a recommendation to the legal services authority saying though the case has ended in acquittal or discharge the court is of the opinion that the victim needs rehabilitation therefore I hereby recommend to the legal services authority to award compensation the legal services authority has a committee of its own the principal district judge probably the chief judicial magistrate public prosecutor or some lawyer they constitute a committee and they decide the quantum of compensation and of course in the case ends in conviction also if the court is of the opinion that the victim needs rehabilitation then certainly it can make a recommendation now under the forth so act the special judge can himself fix the amount of compensation but in respect of other offenses the special judge the court cannot fix the amount of compensation it can only make a direct recommendation not a direction to the legal services authority to do this we have got number of decisions with regard to victim compensation of course I have not brought them today no that's fine so since you have been doing a lot of threadbare bear acts and giving insights we have done these sessions also with Mr. Uday Hula what would be your advice to the lawyers and the students of law or professionals or judicial officers first they should first they should go through the bear acts no to understand that also how to understand this this is the reason you see for whatever reason it be English has come to stay in the legal circles for historical reasons law is generally taught in English most of the enactments are in English we don't have the translation to our mother then reported decisions are in English standard textbooks are in English therefore unless you have a minimum command over the English language it is difficult to understand the language of a statute therefore my advice to the end lawyer sees first to try to have some minimum command over the English language if you read the enactment you should pass where there is a comma you should see whether there is a semicolon they should see whether there is a proviso to the section whether there is an exception whether there is an explanation many times we only go by the margin note to the section without going into the main part and thereby get confused this is the problem with this now with regard to 357 one and three alone it is very clear where fine does not form part of the sentence it is very clear so unless you read the section very carefully don't start to going through the decisions first read the enactment if you still find it difficult to understand then go through the commentary even when you go through the commentary just don't read the commentary there will be a footnote there which refers to some decision take that decision don't go by it whether it is mulla or ratanglal he would have referred to some decision it is not mulla's opinion or ratanglal's opinion that matters you will have to see as to what the judge has stated is that decision that is how learning has to go on it takes some time but by experience it's not so difficult to pick it up okay before we again part since there are not many questions and we are used to have your sessions with this thing even in this section how would you make these participants make to understand how do they understand the proviso explanation marginal notes as i said as i said if the statute is in their mother tongue there may not be much problem most of the enactments are in english course we are functioning in english of course depositions are recorded in a local language judgments are mostly in english my advice to the nlircs they should develop some command over the english language they should read some newspaper english newspaper every day appoint themselves and if you go through the bearer you will get that legal language legal jargon thereafter read some boots then you will develop that unless you have a minimum command over the language even if the statute is in tanada or english or the local language you will not be able to understand it you will have to carefully go through it don't presume anything the problem with most of us is we presume that there are certain things as i said the atrocities act has not repealed the protection of civil rights act at all after this atrocities act came i hardly could find a charge sheet where the protection of civil rights act was involved whether we presume that this act has repealed it has not repealed it the problem with us is we presume certain things before we go through it this act of presumption we should first give up whether i tell it or somebody else tells it even when i have said something it is better for the participants to counter check it sometimes i might have spoken from my memory they will have to counter check it let's say and sometimes the law also evolves yes yes they say so i was saying for a common man to understand what is how do you understand the meaning of the proviso as such an excellent for a common man it is difficult let me be very honest for a common man understanding the legal provisions even if they are in mother time it is difficult that is my honest opinion that i also do that when we get the verification and sometimes the court has the opinion that the verification is not problem is not in consonance i always believe that he had not understood actually he's just believed that the lawyer what he has got it written must be correct as a judge i can say as a professional you should be happy that the legislation is such that a common man cannot understand he's supposed to come to you be happy about it that's true so thank you sir for sharing your knowledge and this is always insightful and tomorrow's session like you were concluding on the poxuate tomorrow we will be having a session of every entry standards in poxuate by doctor justice charlie from saskar oh a former judge who has recently written the book on this act therefore we thought why not come from a person who is well known on these fields coupled with the fact he has recently brushed up the book also on the poxuate in fact she also speaks on journal just is that yes yes she's very good journal just is that also yes we have done sessions with her yes extremely good his book is tomorrow decoding the child his book is otherwise decoding the child sexual abuse yes do stay connected with us tomorrow at 6 p.m. thank you everyone stay safe stay blessed