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N.Chandrashekharayya, M.Com.,LL.B.- Advocate, Raichur

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One of the objects of the Protection of Human Rights Act, 1993 as stated in the preamble of the Act, is the establishment of human rights courts at district level. The creation of Human Rights Courts at the district level has a great potential to protect and realize human rights at the grassroots.

The Protection of Human Rights Act, 1993 provides for establishment Human Rights Courts for the purpose of providing speedy trial of offences arising out of violation of human rights. It provides that the state Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Sessions to be a Human Rights Court to try the said offences. The object of establishment of such Courts at district level is to ensure speedy disposal of cases relating to offences arising out of violation of human rights.

The Act refers to the offences arising out of violations of human rights. But it does not define or explain the meaning of "offences arising out of violations of human rights". It is vague. The Act dose not give any clear indication or clarification as to what type of offences actually are to be tried by the Human Rights Courts. No efforts are made by the Central Government in this direction. Unless the offence is not defined the courts cannot take cognizance of the offences and try them. Till then the Human Rights Courts will remain only for namesake.

Even if "offences arising out of violations of human rights" are defined and clarified or classified, another problem arises in the working of the Human Rights courts in India. The problem is who can take cognizance of the offences. What the Act says is in each district, one Sessions Court has to be specified for trying "offences arising out of human rights violation". It is silent about taking of cognizance of the offence. The Prevention of Corruption Act, 1988 is another law, which provides for appointment of a Sessions Judge in each district as Special Judge to try the offence under the said Act. Provision has been made in section 5 of the Prevention of Corruption Act, 1988 empowering the Special Judge to take cognizance of the offences under the said Act. In the Protection of Human Rights Act, 1993 it is not so.

Sessions Court of the district concerned is considered as the Human Rights Court. Under the Criminal Procedure Code, 1973 a Sessions Judge cannot take cognizance of the offence. He can only try the cases committed to him by the magistrate under Section 193 of the Cr.P.C.

Similar problem had arisen in working of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the beginning. The Special Judges used to take cognizance of the offences. In Potluri Purna Chandra Prabhakara Rao V. State of A.P., 2002(1) Criminal Court cases 150, Ujjagar singh & others V. State of Haryana & another, 2003(1) Criminal Court Cases 406 and some other cases it was held that the Special Court (Court of Session) does not get jurisdiction to try the offence under the Act without committal by the Magistrate. The Supreme Court also held same view in Moly & another V. State of Kerala, 2004(2) Criminal Court Cases 514. Consequently the trial of all the cases under the Prevention of Atrocities Act were stopped and all the cases were sent to the Courts of jurisdictional Magistrates. Thereafter the respective Magistrates took cognizance of the cases and committed them to the Special Courts. The Special Courts started trying the cases after they were committed to them. The Act was later amended giving the Special Courts the power to take cognizance of the offences under Act.

The situation in respect of the Human Rights courts under the Protection of Human Rights Act, 1993 is not different.

Apart from the above, the Special Courts will face yet another question whether provisions of Section 197 of Cr.P.C. are applicable for taking cognizance of the offences under the Protection of Human Rights Act, 1993. In most of the cases of violation of human rights it is the police and other public officers who will be accused. The offence relate to commission or omission of the public servants in discharge of their duties. Definitely the accused facing the trial under the Act raise the
objection. There are plethora of precedents in favour of dispensing with the applicability of Section 197 of Cr.P.C. on the ground that such acts (like the ones which result in violation of human rights) do not come within the purview of the duties of public servants. But there is scope for speculation as long as there is no specific provision in the Act dispensing with the applicability of Section 197 of Cr.P.C.

The object of establishment of such Courts at district level is to ensure speedy disposal of cases relating to offences arising out of violation of human rights. Unless the lawmakers take note of the above anomalies and remove them by proper amendments the aim for which provisions are made for establishment of special courts will not be achieved.

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Authors contact info - articles The  author can be reached at:  n-chandrashekharayya@legalserviceindia.com / Law Print This Article

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