Allahabad High Court
Vinod Kumar vs State Of U.P. And 5 Others on 5 July, 2022
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- CRIMINAL APPEAL No. - 243 of 2022 Appellant :- Vinod Kumar Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Vidya Dhar Yadav Counsel for Respondent :- G.A.,Shri Prakash Dwivedi Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the appellant, Shri B.K. Singh Parmar, learned counsel for respondent no. 1 and 2 as well as Shri Prakash Dwivedi, learned counsel for respondent no. 3 to 6.
Brief facts of the case are that on 06.08.2021 at about 6:00 PM, the appellant along with Praveen Kumar was going to Jigna for purchasing medicines and when the appellant reached at Jigna in front of shop of one Sonu Sonkar, then opposite party nos. 3 to 6 reached on that very place and thereafter, opposite party no. 3 has used abusive language and caste indicating words and on alarm, other opponents nos. 4, 5 and 6 who were already on the spot, all of them mercilessly beat the appellant. On the next date i.e. 07.08.2021 the appellant was medically examined at Primary Health Centre Vijaypur (Saroi), Mirzapur. The X-ray of the right hand and skull was conducted on 11.08.2021 at District Hospital Sonbhadra wherein Meacarpal bone was found to be fractured.
It is further submitted that on the same day i.e. 06.08.2021, an application was given by the appellant to opposite party no. 2 for lodging the F.I.R., however, he did not lodge the F.I.R. and thereafter he gave application to the Superintendent of Police, Mirzapur (another higher authority) through registered post. On 09.08.2021 when no F.I.R. was registered, then ultimately the appellant filed an application under Section 156(3) Cr.P.C. before the Court of Special Judge (S.C./S.T. Act), Mirzapur who had registered the same as criminal Misc. case No. 640/2021 and directed the police to submit the report. After receiving the report, the learned Special Judge (S.C./S.T. Act), Mirzapur vide impugned order dated 21.11.2021 directed the application given by the appellant under Section 156(3) Cr.P.C. to be treated and registered as a complaint case. It is this order dated 12.11.2021 which is assailed by the appellant before this Court.
Short submission of learned counsel for the appellant is that in view of the law laid down by the Coordinate Bench of this Court in the case of "Soni Devi and State of UP and 10 others", passed in Application under Section 482 No. 12864/2021, the application under section 156(3) Cr.P.C. given by the appellant could not have been treated and converted into a complaint case in view of Rule 5(1) of Scheduled Caste and Scheduled Tribe (Prevention from Atrocities) Rules, 1995 which has been amended with effect from 14.04.2016. The Coordinate Bench of this Court in the case of Soni Devi (supra) while considering the various provisions of S.C./S.T. Act and particularly section 14, 14(1) and Rule 5(1) of 1995 Rules, has held under:-
"Now, in light of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2015 [Act 1 of 2016], to resolve the aforesaid issue, it is necessary to go through the definition of the term ''Special Court' as defined in Section 2(d) of the Act, which reads as follows: -
"Special Court, means a Court of Session specified as a Special Court in Section 14."
Section 14 of the Act, before the amendment Act of 2015, was as follows:
"14. Special Court.- For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act."
A reading of the said provision would indicate that a Court of Session shall be notified as a Special Court.
Section 14 of the SC/ST Act was drastically amended by the Amendment Act (1 of 2016). Section 14 has now been replaced by an entirely new provision. Thus, the amended Section 14 of the Act reads as follows:-
14. (1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:
Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act:
Provided further that the Courts so established or specified shall have powers to take cognizance directly of offences under this Act.
Thus in Section 14 (1), for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:
Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act:
Provided further that the Courts so established or specified shall have powers to take cognizance directly of offences under this Act in view of amended provisions, exclusive Special Court as well as Special Court shall exercise original jurisdiction to take cognizance of the offence under the Act and proceed with trial of the case not being hindered by Section 193 Cr.P.C. The said Special Courts, were not originally empowered to take cognizance of offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, directly as the Special Courts were hindered by Section 193 of Code of Criminal Procedure as already pointed out under the Special Court notified as per first proviso to Section 14 of the Act, as amended, has got power to directly take cognizance without there being any need for committal.
Therefore, the question as to whether the Magistrate can directly take cognizance of offence punishable under SC/ST Act or it is the Special Court constituted under Section 14 of the Act, 1989 which has the jurisdiction to take cognizance in view of amendment made in provisions of SC/ST Act, Amended Act 2015 (Act No.1 of 2016). The reply thereto is that Magistrate has absolutely no jurisdiction to entertain and take cognizance of offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Vide second proviso to Section 14 (1) of SC/ST Act, Act No.1 of 2016, the Special Courts constituted under the aforesaid Act have been empowered to take cognizance of offence directly under this Act with effect from 1.1.2016 and therefore, the powers vested under Section 190 (1) (a) Cr.P.C. has come to an end. Answered accordingly.
The second question for consideration before this Court is as to whether the Special Judge can treat the application under Section 156 (3) Cr.P.C. as a complaint case or not.
To determine the aforesaid question, it is necessary to go through Rule 5 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules 1995.
5. INFORMATION TO POLICE OFFICER IN-CHARGE OF A POLICE STATION:
(1) Every information relating to the commission of an offence under the Act, if given orally to an officer in-charge of a police station shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the persons giving it, and the substance thereof shall be entered in a book to be maintained by that police station.
(2) A copy of the information as so recorded under sub-rule (1) above shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in-charge of a police station to record the information referred to in sub-rule (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who after investigation either by himself or by a police officer not below the rank of Deputy Superintendent of Police, shall make an order in writing to the officer in-charge of the concerned police station to enter the substance of that information to be entered in the book to be maintained by the police station.
In case, no action is taken then the aggrieved person has a right for redressal of his grievance under Section 15 (9) of the SC/SC Act by filing a complaint before the Special/Exclusive Special Judge, as the case may be, who shall refer the complaint to the supervisory Administrative Committee framed under Section 21 (iv) of the SC/ST Act read with Rule 4(4) and Rule 17 of the SC/ST Rules, which was replaced by G.S.R. 424 (E) dated 14.04.2016 (w.e.f 14.04.2016) Section 18 A (1) (a) Scheduled Castes and the Schduled Tribes (Prevention of Atrocities) Act 1989 as amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018, is in the following terms:-
"18A. No enquiry or approval required-- (1) For the purpose of this Act (a) preliminary enquiry shall not be required for registration of a First Information Report against any person."
As no enquiry or approval is required for registration of the first information report against any person under Section 18A of the Act and in case F.I.R. is not lodged, Section 4 (1) of the Act provides for punishment of a public servant in neglecting it's duties, after following the procedure as has been provided under Section 5 (3) of the Rules. Section 4 (1) of the Act reads as under:-
"4(1) Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, willfully neglects his duties required to be performed by him under this Act and the rules made thereunder, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year.
4(2) The duties of the public servant to in sub-section (1) shall include--
(a) to read out to an informant the information given orally, and reduced to writing by the officer in-charge of the police station, before taking the signature of the informant;
(b) to register a complaint or a First Information Report under this Act and other relevant provisions and to register it under appropriate sections of this Act;
(c) to furnish a copy of the information so recorded forthwith to the informant;
(d) to record the statement of the victims or witnesses;
(e) to conduct the investigation and file charge sheet in the Special Court or the Exclusive Special Court within a period of sixty days, and to explain the delay if any, in writing.
(f) to correctly prepare, frame and translate any document or electronic record;
(g) to perform any other duty specified in this Act or the rules made thereunder.
Section 4 (3) of the Act provides that the cognizance in respect of any dereliction of duty referred to in sub-section (2) by a public servant shall be taken by the Special Court or Exclusive Special Court and shall give direction for penal proceedings against such public servant.
Considering Rule 5 of the SC/ST Rules 1995 as amended by The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, it is borne out that every information relating to commission of an offence under the Act, if given orally to an officer incharge of the police station shall be reduced to writing since there is no bar under Section 18A of the Act that preliminary enquiry or approval is required for registration of the first information report and on refusal to reduce in writing such information by the police officer, the aggrieved person may move an application in writing and by post to the concerned Superintendent of Police, who may either by himself or by a police officer not below the rank of Deputy Superintendent of Police shall make an order in writing to the officer incharge of the concerned police station to enter the substance of information to be entered in the book to be maintained by that police station. Further, in case the grievance is not redressed, the aggrieved person may approach the Special Court or the Exclusive Special Court against the public servant for punishing him under Section 4 of the Act, for neglecting his duties by a public servant but not being member of Scheduled Caste or a Scheduled Tribe. Even if the grievance is not redressed, the aggrieved person may file a complaint under Section 15 (9) of SC/ST Act before the Special/Exclusive Special Judge, who shall refer the matter before the Administrative Committee formed under Section 21 (iv) of SC/ST Act Rules 4 (4) and Rule (17) of the SC/ST Rules for punishing the officer in charge as per provisions of Section 4 of the Act.
Therefor, the answer to the second question that the Special Judge can treat the application under Section 156 (3) Cr.P.C. as a complaint case or not? Answer is "No" in view of the Rule 5 (1) of the amended Act.
The case in hand is that in Criminal Misc. Application under Section 482 Cr.P.C. No. - 12864 of 2021, which is the leading case, the learned Special Judge (SC/ST) Act Sonebhadra has treated the application under Section 156 (3) Cr.P.C. as a complaint case vide order dated 19.01.2021, which in the opinion of the Court is not tenable in the eyes of law.
The second and third case being Criminal Misc. Application under Section 482 Cr.P.C. Nos. 27758 & 27812 of 2021, wherein the accused persons/applicants have challenged the summoning order dated 19.10.2021 & 29.10.2021 passed by learned Spacial Judge (SC/ST Act), Amroha and District Jalaun, the proceedings are not maintainable so far as it relates to non-registering of the F.I.R. against the accused persons.
In the connected fourth case before this Court is Criminal Misc. Application under Section 482 No. 4382 of 2012, the complainant has challenged the order 12.10.2021 passed by learned Special Judge (SC/ST Act) Allahabad by which the application under Section 156 (3) Cr.P.C. has been rejected. That order, in the considered opinion of the Court is also not sustainable.
Thus the aforesaid four applications are allowed and the proceedings of the aforesaid case are quashed with liberty to the first informant/complainant to approach the concerned Station House Officer for registration of their information in writing as has been provided under Section 5 (1) of the Rules and in case the said information is not reduced in writing by the concerned Police Officer, the first informant/ complainant may move an appropriate application before the concerned Superintendent of Police under Section 5 (3) of the Rules and it is expected that the Superintendent of Police would comply Section 5 (3) of the Rules.
It goes without saying that the subject matter of Criminal Misc. Application U/S 482 No. - 6688 of 2022 as well as Criminal Revision No. - 2363 of 2021 are different from the aforesaid applications and it appears that due to inadvertence both of them have been wrongly connected and thus the same are being un-tagged and are directed to listed as fresh on 13.04.2022 before appropriate Court."
Learned A.G.A. and learned counsel for respondent no. 3 to 6 have opposed the appeal, however, could not dispute the settled legal preposition.
On due consideration to the argument advanced and amended S.C./S.T. Act as well as amended Rule of 1995 Rules, so also perusal of Rule 5(1) of the aforesaid Rules, the impugned order dated 12.11.2021 is quashed. The matter is remanded to the learned Special Judge (S.C./S.T. Act), Mirzapur, who shall direct the concerned police station to lodge an F.I.R. as per the aforesaid Act and Rule 5(1) of S.C./S.T. Rules, 1995.
Order Date :- 5.7.2022 RC