Jharkhand High Court
Dipak Modak vs The State Of Jharkhand on 12 May, 2021
Equivalent citations: AIRONLINE 2021 JHA 543
Author: Sujit Narayan Prasad
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2646 of 2017
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1. Dipak Modak, son of Sri Nagen Modak @ Logen Modak.
2. Raju Modak @ Raju Dan @ Daa, son of Sri Kamdev Dan.
3. Kamdeo Dan @ Kamdeo Modak @ Kamdeo Rajak, son of Late
Sudhir Modak @ Late Sudhir Dang.
All are residents of Karmatanr, P.O. - Damodarpur, Police
Station - Baliapur, District - Dhanbad.
... ... ... Petitioners
Versus
1. The State of Jharkhand.
2. Sita Devi, wife of Sri Gopal Hansada, resident of Village
Kumhartola, Karmatanr, P.O. Damodarpur, P.s. Baliapur, District
- Dhanbad.
3. Branch Manager, Union Bank of India, Upper Bazar, P.O. G.P.O.
P.S. Sadar, District - Ranchi-834001.
... ... ... Opposite Parties
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Md. Zaid Ahmed, Advocate
For the State : Mr. Rajiv Ranjan, Advocate General
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C.A.V. on 10.12.2020 Pronounced on 12.05.2021
Per Sujit Narayan Prasad, J.
With consent of the parties, hearing of the matter was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality.
2. Heard parties.
3. The instant application has been filed under Section 482 of the Code of Criminal Procedure for quashing of order dated 08.08.2017 passed by Additional Sessions Judge-I-cum-Special Judge, CBI, Dhanbad in C.P. Case No. 3238 of 2016 whereby cognizance for the offence under Section 3(1) (G) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter -2- referred as the Act, 1989) has been taken.
4. The matter was placed before the learned Single Judge of this Court wherein counsel for the petitioners has agitated the issue about violation of Sub-rule (3) of Rule 5 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred as the Rules, 1995).
Submission has been made for quashing of the entire criminal proceeding on the ground of non-compliance of the provision of Sub-rule (3) of Rule 5 of the Rules, 1995 which, according to the petitioners, is a mandatory provision. In support of his argument, reliance has been placed upon a judgment delivered by another learned Single Judge of this Court in Bomshankar Jha and Ors. V. State of Jharkhand and Another reported in (2016) 1 JBCJ 223 (HC).
5. The aforesaid submission was opposed by the counsel for the complainant by placing reliance upon another judgment passed by learned Single Judge of this Court in Shiv Kumar Singh & Ors. V. The State of Jharkhand & Another reported in 2017 (1) JLJR 291 holding therein Rule 5(3) of the Rules, 1995 as not mandatory.
6. Learned Single Judge who was in seisin of this matter, after considering the rival submissions of the parties and taking into consideration two conflicting opinion of two Co-ordinate Benches, has referred the matter to Division Bench to be constituted by Hon'ble the Chief Justice. For ready reference, the order passed by the learned Single Judge of this Court in the instant case dated 26.11.2019 is being referred hereunder as :-
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―06/26.11.2019 Counsel for the petitioners submits that there is violation of sub-rule 3 of Rule-5 of the Schedule Caste and Schedule Tribes Prevention of Atrocities Rule, 1995 in this case. He submits that Sub-5(3) is a mandatory provision which has been held by the court co-ordinate bench of this Court in the case of Bomshankar Jha @ Ors. Vs. State of Jharkhand & Anr. reported in (2016) 1 JBCJ 223 (HC). He submits that cognizance cannot be taken if recourse of Rule- 5(3) has not been taken by the complainant.
To oppose the aforesaid submission, counsel for the complainant submits that another co-ordinate bench of this Hon'ble High Court Court in the case of Shiv Kumar Singh & Ors. Vrs. The State of Jharkhand & Anr. reported in (2017) 1 JLJR 291 has held that Rule -5(3) of aforesaid rules is not mandatory.
I have perused both orders passed by the co-ordinate benches of this Court. I find that there is a direct conflict of opinion of the two co-ordinate benches. Thus this matter is referred to Division Bench to be constituted by Hon'ble the Chief Justice.
Let case be placed before Hon'ble the Chief Justice. In the meantime, interim order granted earlier shall continue.
Counsel for the petitioners is directed to file two copies of the memo and the opposite party no.2 will also file copy of the counter-affidavit.‖
7. The matter has been assigned to this Bench vide administrative decision of Hon'ble the Chief Justice dated 12.06.2020 and thereafter the matter has been placed before this Division Bench.
8. Learned counsel for the petitioners has submitted that the provision of Sub-rule (3) of Rule 5 is mandatory and due to non- observance of the aforesaid provision of law in the facts and circumstances of the instant case, the order taking cognizance dated 08.08.2017 is bad in law and the same is not sustainable.
9. The State has been represented by the learned Advocate -4- General of the State and has advanced his argument by referring to the scope and intent of the Act, 1989 and keeping that object into consideration, the Rules of 1995 have been formulated by way of a procedural law to achieve the object and intent of the Act, 1989.
According to him, Sub-rule(1) of Rule 5 of the Rules, 1995 stipulates that 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.
Sub-rule (2) thereof provides that the copy of the information as so recorded shall be given forthwith, free of cost, to the informant.
Sub-rule (3) provides that as per the provision of Sub-rule (1) of Rule 5, the aggrieved person 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 that the police station.
10. The aforesaid provisions clearly stipulate about recording of the information regarding commission of an offence, given orally or in writing to the concerned police station but on refusal of the same, -5- the person aggrieved may send the substance of such information, in writing and by post, to the Superintendent of Police, who, in turn shall make an order in writing to the Officer-in-Charge of the concerned police station.
According to the learned Advocate General, the first part of the provision of Sub-rule (3) of Rule 5 will be treated to be mandatory and even if the same has not been followed, the entire criminal proceeding will not vitiate as because due to non-compliance of any provision or part of it, without containing therein any consequence of non-compliance, the proceeding will not vitiate.
Further, the word ―may‖ has been inserted treating it to be directory but once the application will be filed, the Superintendent of Police will have no option but to direct for investigation which suggests in case of refusal on the part of the Officer-in-charge from instituting a case, it is up to the aggrieved party to proceed further or may not proceed but once the aggrieved person has proceeded, it is mandatory on the part of the Superintendent of Police to direct for investigation.
His further submission is that the object and intent of the Act is to prevent the atrocities of the Scheduled Castes and Scheduled Tribes community and as such in order to achieve the object and intent, the entire purpose of the Act is to be considered and to achieve it the entire Act/Rules is to be read out in entirety.
He has further submitted by referring to the provision of Section 154 of the Code of Criminal Procedure, more particularly Sub-Section (3) of Section 154 which contains a provision verbatim -6- the same as has been enacted under the provision of Sub-rule(3) of Rule of the Rule, 1995. Therefore, according to him, it is not that the F.I.R. cannot be registered only due to non-compliance of the provision of Sub-section (3) of Section 154 of the Cr.P.C., rather without resorting to the provision of Sub-section (3) of Section 154, even if complaint has been made, the Magistrate has got power under Section 190 of the Cr.P.C. for investigation in the matter under the provisions of Section 156(3) of the Cr.P.C.
He has further submitted that it is evident from the provision of the Act, 1989 that the exclusion provision about non-applicability of the provisions of Code of Criminal Procedure has specifically been incorporated therein which suggest that the other part of the provision of Cr.P.C. pertaining to procedure is applicable even in the matter of atrocities to the members of Scheduled Castes and Scheduled Tribe community.
In view of the above argument, submission has been made that even if the provision of Sub-rule (3) of Rule 5 will not be followed, the entire criminal proceeding will not vitiate and, therefore, according to him, the view expressed by the learned Single Judge of this Court in the case of Shiv Kumar Singh & Ors. Vrs. The State of Jharkhand & Anr. (Cr.M.P. No.247 of 2011) reported in (2017) 1 JLJR 291 is good law.
11. We have heard the learned counsel for the parties and appreciated their arguments.
This Court first deems it fit and proper to refer about the object and intent of the Act, 1989 which has been enacted to prevent the -7- commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for [Special Courts and the Exclusive Special Courts] for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.
The occasion to enact the Act, 1989 has come as because despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.
This Act originally enacted in the year 1989 but got amended by virtue of Amendment Act 1 of 2016 with a view to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes and to establish Special Courts for the trial of such offences and for providing relief and rehabilitation of the victims of such offences and as such, to achieve this object, amendment has been incorporated in the Act, 1989 in the year 2016.
Section 3 under Chapter II pertains to offence of atrocities while Section 4 pertains to punishment for neglect of duties.
It is evident from the provision of Section 4 which casts duty upon the public servant who is not a member of Scheduled Castes or Scheduled Tribe if willfully neglects his duties required to be -8- performed by him under this Act and the rules made thereunder, shall be punishable. The provision of Section 4 suggests the nature of the enactment and the Parliamentarians are very much cautious and concerned to achieve the object and intent of the Act.
The rules have been framed by the Central Government in exercise of the powers conferred by Sub-section (1) of Section 23 of the Act, 1989.
Section 23 provides the conferment of power upon the Central Government for carrying out the purpose of the Act, meaning thereby, the Rules, 1995 is a procedure law to achieve the object and intent of the Act, 1989.
Rule 3 of the Rules, 1995 contains provision for taking precautionary and preventive measures with a view to prevent atrocities on the members of Scheduled Castes and the Scheduled Tribes community and to achieve that the State Government has been conferred with power to identify the area where it has reason to believe that atrocity may take place or there is an apprehension of reoccurrence of an offence under the Act, order the District Magistrate and Superintendent of Police or any other officer to visit the identified area and review the law and order situation, to constitute a high-power State-level committee at district and divisional level, to set-up a vigilance and monitoring committee to suggest effective measures to implement the provisions of the Act, to set-up Awareness Centres and organise Workshops in the identified area or at some other place to educate the persons belonging to the Scheduled Castes and the Scheduled Tribes about -9- their rights and the protection available to them under the provisions of various Central and State enactments or rules, regulations and schemes framed thereunder, to encourage Non-Government Organisations for establishing and maintaining Awareness Centres and Organising Workshops and provide them necessary financial and other sort of assistance and to deploy special police force in the identified area etc. Rule 4 of the Rules, 1995 provides the power of supervision of prosecution and submission of report while Rule 5 provides information to police officer in charge of a police station.
The reference of this case pertains to interpretation of the provision of Rule 5(3) and as such the provision of Rule 5 is required to be referred herein which reads as under :-
"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 that Police Station.‖
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It is evident from the provision of Rule 5(1) that 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, shall be signed by the persons giving it, and the substance thereof shall be entered in a book maintained by that Police Station.
Sub-section (2) thereof provides that a copy of such information as so recorded under sub-rule (1) shall be given forthwith, free of cost, to the informant.
It is, thus, evident that Sub-rule(1) of Rule 5 contains a provision to bring to the notice about the commission of offence under the Act to the Officer-in-Charge of the police station for investigation of the matter and to take necessary action as provided under the Act but the Parliamentarians have taken care of that in case there is refusal on the part of the concerned police station to discharge the duty as enshrined under Sub-rule(1) of Rule 5, the person aggrieved 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 maintained by that Police Station.
Sub-rule(3) is thus in two parts, the first part is the action to be taken by person aggrieved in case of refusal of institution of a case as per the provision of Sub-rule(1) of Rule 5 while the second part
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casts duty upon the concerned Superintendent of Police, on receipt of information about refusal of institution of a case as per the provision of Sub-rule(1) of Rule 5, to direct the authority not below the rank of Deputy Superintendent of Police to investigate in the matter.
So far as the first part is concerned, the word ―may‖ has been used while in the second part the word ―shall‖ has been used. The purport of using the word ―may‖ in the first part is to give discretion upon the person aggrieved to make a complaint about the refusal to act in pursuance to the provision of Sub-rule (1) of Rule 5 before the concerned Superintendent of Police or if he so choses, may not make a complaint since making a complaint always depends upon the desire of the sufferer and that is the reason the word ―may‖ has been used but the moment the person aggrieved has acted in pursuance to the first part of the recourse provided to him/her, the rule mandates the Superintendent of Police to direct for investigation in the matter making it mandatory by using the word ―shall‖.
12. The question to be answered in this case is that as to whether in case the person aggrieved has not resorted to the recourse available to him/her in sending the substance of such information on refusal as under Sub-rule (1) of Rule 5 and made a complaint before the court directly, will the entire criminal proceeding vitiate?
We have already dealt with the purpose and object of the Act, 1989 and hence, it is to be seen that merely on technicality to the effect that the person aggrieved has not brought to the notice of the Superintendent of Police about the refusal of his information about
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commission of the offence and directly complaint case is filed before the concerned court, on that ground the entire criminal proceeding if vitiated, the purpose of the Act would be frustrated and, therefore, the issue is to be examined on the principle of interpretation of the statute which harmonizes with its avowed object is always to be accepted than the one which dilutes it.
The Hon'ble Apex Court in State of West Bengal v. Union of India [AIR 1963 SC 1241] at page 1245 emphasizes the importance of construing the statute as a whole. The relevant part of the paragraph is being quoted hereunder :-
―69. ... ... ... The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire Statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs. ... ... ...‖ The Hon'ble Apex Court further in the case of State of West Bengal v. Union of India (Supra) and N.K.Jain and Others v. C.K.Shah and Others [(1991) 2 SCC 495] has laid down that for construing the provision of an Act a purposive approach should be adopted. In the aforesaid judgment, their Lordships of the Hon'ble Apex Court at paragraph 13 thereof have been pleased to lay down that "the legislative purpose must be noted and the statute must be read as a whole. In our view, taking into consideration the object and underlying the Act and on reading Sections 14 and 17 in full, it becomes clear that cancellation of exemption granted does not amount to a penalty within the meaning of Section 14(2-A)‖. Therefore, while looking to the provision of law, the Act or the
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provision of law is to be seen with the purposive approach so that object and intent of formulating the Act be achieved.
Herein, the object and spirit of the Act is to provide measures for upliftment of the conditions of the members of the Scheduled Castes and Scheduled Tribes communities. The reason behind it is that they have been thought to be down trodden people subjected to atrocities since long and to enable them to come in parity with the other sections of the society, provisions have been made by way of enactment of the Act, 1989 and that is the reason under the Rules, 1995 so many precautionary and preventive measures have been provided even for the upliftment of the people belonging to the said community by setting up awareness centres and by organizing workshops etc. Penal offence as also duty has been casted upon the public servants who are not the members of the Scheduled Castes or Scheduled Tribes to act in pursuance of the provisions of the Act failing which there is provision for punishment.
Keeping the aforesaid fact into consideration, the procedure has been laid down under Rule 5 giving recourse for the members of Scheduled Castes and Scheduled Tribes community to furnish information relating to commission of any offence under Act even the commission of offence be informed orally but in case of oral information, the same is to be written and a copy thereof is to be furnished to the informant. But the provision provides for taking care of such situation where the written complaint or oral complaint has been refused to be accepted as under the provision of Sub-rule (1) of Rule 5, in that eventuality the person aggrieved may send the
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substance of such information, in writing and by post to the Superintendent of Police concerned who shall make an order in writing to enter substance of that information to be entered in the book to be maintained by that police station.
But, in case the aggrieved has not reported the fact about refusal of instituting a case as mandated under Sub-rule (1) of Rule 5, the entire criminal proceeding will not vitiate it is for the reasons :-
(i) The provision of Sub-rule (3) of Rule 5 does not stipulate about the consequence that in case of refusal on the part of Officer-
in-Charge of a police station as under Sub-rule(1) of Rule 5 and if the criminal proceeding on that ground will be allowed to be vitiated, the entire object and intent of the Act will frustrate.
We have considered this aspect on the basis of principle of purposive construction as has been laid down by the Hon'ble Apex Court in the case of N.K.Jain and Others v. C.K.Shah and Others (Supra) that while dealing with the case about applicability of a provision of law, the entire Act/statute is to be read in entirety for the purpose of achieving the object and intent.
(ii) It is the settled position of law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence of inaction on the part of the statutory authorities is expressly provided, it must be held to be mandatory.
This aspect of the matter has been considered by the Hon'ble Apex Court in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Others [(2003) 2 SCC 111] in which at paragraph
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42 and 43 it has been held :-
"42. We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.
43. In Sutherland's Statutory Construction, 3rd Edn., Vol. 3, at p. 102 the law is stated as follows:
―... unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the officer‖.
At p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At p. 111 it is stated as follows:
―As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive.‖‖ It is evident from the aforesaid proposition of law that the Hon'ble Apex Court has laid down that if any law has been formulated the same is ordinarily directory but if it is along with consequence for inaction, the same will be said to be mandatory.
We have adjudged the provision of Sub-rule(3) of Rule 5 and found therefrom that no consequence of making no information as has been provided in the first part of Sub-rule (3) of Rule 5, has been stipulated therein and as such, the aforesaid provision cannot be held to be mandatory in view of the judgment rendered by Hon'ble Apex Court in the case of Bhavnagar University v.
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Palitana Sugar Mill (P) Ltd. and Others (Supra).
13. We have also considered this aspect of the matter by going through the provision of Code of Criminal Procedure, more particularly the provision of Sections 154, 156 and 190. It is not in dispute that the Code of Criminal Procedure is a procedure law for general applicability and as such, the said procedure law will be applicable unless the provision contained therein is ousted by enactment made by virtue of the special Act. Herein, the exclusion provision has been provided under Section 18 of the Act, 1989 stipulating therein that Section 438 of the Code shall not apply to persons committed an offence under this Act.
Thus, it is evident that the Act, 1989, being a special statute, has only ousted the applicability of Section 438 of the Code of Criminal Procedure by making specific stipulation in this regard as under Section 18, meaning thereby, the other provision of Code of Criminal Procedure, 1973 will be applicable. Thereby, the provisions of Sections 154, 156 and 190 of Code of Criminal Procedure, 1973 will be applicable.
Section 154(1) of Code of Criminal Procedure provides provision for information in cognizable cases while Sub-section (2) provides a copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost to the informant. Sub-section (3) thereof provides any person aggrieved by refusal on the part of the Officer-in-Charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police
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concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. Therefore, the provision contained in Rule 5(3) of the Rules, 1995 in verbatim same as provided under Section 154(3) of the Code of Criminal Procedure.
The question is that when the provision under Section 154(3) of the Code of Criminal Procedure is verbatim to Sub-rule (3) of Rule 5 of the Rules, 1995, can a complaint be not filed by the aggrieved without resorting to the provision of Section 154(1)?
We have travelled to the provision of Section 156 of the Code of Criminal Procedure which confers power upon the police officers to investigate cognizable offence. Sub-section (3) of Section 156 confers power upon the Magistrate under Section 190 who may order an investigation.
Section 190 of the Code of Criminal Procedure confers power upon the Magistrate to take cognizance which reads hereunder as :-
―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.
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(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 evident from the provision of Section 190 which confers power upon the Magistrate to take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Thus, it is evident that the provisions as contained under Section 154 and 190 of the Code of Criminal Procedure are not overlapping to each other, rather both are independent to each other as because even if no F.I.R. has been filed as under Section 154(1) of the Code of Criminal Procedure, it does not construe that a complaint case cannot be filed before the competent Judicial Magistrate by taking recourse of the provision of Section 190 of the Code of Criminal Procedure, rather it can be filed and the Magistrate can take cognizance upon receiving the same.
Section 156(3) of the Code of Criminal Procedure confers power upon the Magistrate under the provision of Section 190 to refer the matter before the police officer to conduct an investigation. Therefore, if the provisions of Sections 154(1), 156(3) and 190 of the Code of Criminal Procedure will be read together, it would be evident that there is no embargo for the concerned Magistrate to take cognizance on receipt of a complaint, however, before doing that the Magistrate may ask the concerned police officer to conduct
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an investigation as provided under the provision of Section 156(3) of the Code of Criminal Procedure. Therefore, when the Code of Criminal Procedure does not put any embargo in instituting a complaint without instituting an F.I.R. and when there is no ouster provision of the provision of Section 156 (3) or Section 190 of the Code of Criminal Procedure, the same will also be applicable as a procedure law in addition to what has been provided by way of procedure under the Rules, 1995, in order to achieve the purpose and intent of the Act.
14. In view of the aforesaid discussions, we are of the considered view that on technicality the entire criminal proceeding cannot be vitiated if a complaint has been filed directly before the concerned Magistrate without resorting to the filing of the F.I.R. or reporting the commission of offence before the concerned police station.
Further, the first part of the provision of Sub-rule (3) of Rule 5 of the Rule, 1995 gives recourse to the aggrieved person to make a complaint on refusal of his information about commission of offence as under Sub-rule (1) of Rule 5 and therefore, the entire criminal proceeding will not vitiate due to the reason that even without resorting to provision of Rule 5 when a complaint can be filed under the provision of Section 190 of the Code of Criminal Procedure, as has been held by us as above, the non-observance of the first part will not dis-entitle the person aggrieved to make a complaint.
The matter would have been different if the aggrieved person considered himself to be satisfied after refusal of his information about commission of offence as there is no occasion for the
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Superintendent of Police to act in pursuance to the second part of the mandate as provided under Sub-rule(3) of Rule 5 but fact remains that when the complaint can be filed directly without resorting to the provision of Rule 5 by taking recourse of the provision of Section 190 of the Code of Criminal Procedure, the criminal case will not vitiate.
15. In that view of the matter, the judgment rendered by learned Single Judge of this Court in the case of Shiv Kumar Singh & Ors. V. The State of Jharkhand & Another reported in 2017 (1) JLJR 291 is held to be good law.
Accordingly, the reference is answered.
16. Let the matter be posted for hearing before the learned Single Judge for taking decision on merit.
(Dr. Ravi Ranjan, C.J.) I agree (Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad,J.) Birendra/ A.F.R.