Allahabad High Court
Naresh Kumar Valmiki vs State Of U.P. And 4 Others on 19 July, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 15.6.2022
Delivered on 19.7.2022
Court No. - 91
Case :- APPLICATION U/S 482 No. - 14443 of 2022
Applicant :- Naresh Kumar Valmiki
Opposite Party :- State Of U.P. And 4 Others
Counsel for Applicant :- Arvind Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
1. Heard Sri Arvind Kumar Singh, learned counsel for the applicant, Sri Ankit Srivastava, learned counsel for the State and perused the records.
2. The present Criminal Misc. Application under Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.) has been filed by the applicant Naresh Kumar Valmiki, with the following prayers :
"It, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to stay the effect and operation of the order dated 12.8.2021 (Annexure No. 2) passed by Special Judge (SC/ST), Etah and also be pleased to direct to the police of police station : Aliganj, District : Etah to lodge the FIR and investigate the case against the accused persons in accordance with law and/or may pass such other and further order as this Hon'ble Court may deem fit and proper, so the justice be done between the parties.
It is further, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the order dated 12.8.2021 (Annexure No. 2) passed by Special Judge (SC/ST), Etah in criminal misc. case no. 220 of 2021 (Naresh Kumar vs. Indrajit & ors.) and further be pleased to direct to the learned Special Judge (SC/ST (PA) Act, Etah to proceed application u/s 156(3) Cr.P.C. in accordance with law and direct to the police of police station : Aliganj, District : Etah to lodge the FIR and investigate the case against the accused persons in accordance with law and/or may pass such other and further order as this Hon'ble Court may deem fit and proper, so the justice be done between the parties."
3. Learned counsel for the applicant has confined his argument only to the aspect that the impugned order dated 12.8.2021 passed by Special Judge, SC/ST (PA) Act, Etah is ex-facie bad, illegal and not sustainable in the eyes of law as an application dated 5.4.2021 was filed under Section 156(3) Cr.P.C. against Indrajit Singh, Abhijit @Chhote Yadav, Akhilesh and Umesh, with the prayer that appropriate order be passed for registration of F.I.R. and investigation upon the same, but the court concerned vide its order dated 12.8.2021 directed the said application filed under Section 156(3) Cr.P.C. to be registered as a complaint and further directed that the matter be posted for further date for recording of statement of the complainant under Section 200 Cr.P.C.
4. Learned counsel for the applicant argued that the opposite party no. 2 to 5 who are the accused in the application under Section 156(3) Cr.P.C., are not the members of Scheduled Castes and/or Scheduled Tribes. He has relied upon the judgment of a co-ordinate Bench of this Court in the case of Soni Devi vs. State of U.P. and others : 2022 (5) ADJ 64 and has argued that the issue as to whether an application under Section 156(3) Cr.P.C. specifically with regards to an offence under The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as ''the Act 1989'), can be treated as a complaint or not, is no more res integra but it has been held in the said judgement that the same cannot be treated as a complaint and the only option before the concerned court is to direct lodging of a First Information Report and investigation thereupon. It is argued that in view of the said judgement, the order impugned be set aside and the application under Section 156(3) Cr.P.C. be directed to be ordered to be registered as a First Information Report and investigation be carried out against the accused persons.
5. Per contra, learned State counsel has opposed the said argument and has argued that Special Judge, SC/ST(PA) Act is not bound to direct lodging of a F.I.R. only on an application moved under Section 156(3) Cr.P.C. before him. It is argued that the court concerned has to apply its judicial mind and then reach to a conclusion as to what order has to be passed and the order as such passed, has to reflect the independent opinion of the court concerned.
6. This Court has gone through the judgement passed in the case of Soni Devi (Supra).
7. Two questions were framed in the same. The first question is not being referred to, as the same does not relate to the issue in dispute. The second question as framed therein in paragraph 15 is as follows:
"15. The second question for consideration before this Court is as to whether Special Judge can treat the application under Section 156(3) Cr.P.C. as a complaint case or not."
8. At this stage before further going into the issue, answer as given to the second question in paragraph 18 of the judgement is as follows:
" 18. .... Therefore answer to the second question that 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 Rule 5(1) of the Amended Act."
9. A Special Judge established or specified for the purposes of the Act 1989, is for providing speedy trial and also shall have the power to directly take cognizance of the offence under the Act 1989. It is settled proposition of law that on receipt of a complaint a Magistrate has to apply his judicial mind to the allegations in the complaint and then to take a decision as to whether he would proceed at once to take cognizance of the offence in terms of Section 190 Cr.P.C. or order for investigation under Section 156(3) Cr.P.C.
10. In the case of Ram Swarup vs Mohd. Javed Razack & Anr: (2005) 10 SCC 393, the Apex Court has held that forwarding a complaint to the police for investigation is not necessary in every case. If, prima facie, an offence is made, cognizance can be taken by the Magistrate himself.
11. Legal position in a situation of filing of a complaint before a Magistrate is very well clear and explicit. A Magistrate or such court, as the case may be, has to apply his judicial mind to the allegations in the complaint against the accused persons and thereafter, he has to make up his mind and proceed as to whether it should be sent to the police station with directions to Officer In-charge for its registration and investigation in terms of Section 156(3) Cr.P.C. or to take cognizance of the offence as alleged and proceed to examine the complainant and his witnesses and take further steps in this regard as per the Code of Criminal Procedure or even reject the same. The powers of a Magistrate or such court cannot be curtailed so as to place it in a tight compartment to exercise it in a particular direction and way only mechanically without being left to pass any other order as per his wisdom. A court cannot be ordered to pass a particular order and act in a particular way only without any discretion left to its wisdom. It cannot be that by treating an application moved under Section 156(3) Cr.P.C. as a complaint, making an inquiry into it and then proceeding as per Section 204 Cr.P.C., the complainant will not get an effective and efficacious remedy to ventilate his grievances.
12. Section 14(1) of the Act, 1989 reads as under :
"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."
13. Section 193 Cr.P.C. reads as under :
"193. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."
14. A perusal of these two sections makes it clear that there is an express provision under Section 14 (1) of the Act which provides powers to Special Court to directly take cognizance of an offence under the Act 1989. The mode of taking cognizance has to be as per Section 190 Cr.P.C. Since the scheme of Code of Criminal Procedure provides for cognizance to be taken by Magistrates in the manner specified under Section 190 Cr.P.C. and the Session Judges are restricted to directly take cognizance of the offences except where there is specific provision for the same. Hence, if a Sessions Judge or a Special Judge, as the case may be, takes cognizance, the mode of taking cognizance of an offence will be as prescribed under Section 190 Cr.P.C. and hence, the Special Judge, SC/ST (PA) Act is well within his powers to treat an application moved under Section 156(3) Cr.P.C. as a complaint.
15. Rule 5 of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 reads as under :
"5. (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."
16. Section 154 Cr.P.C. reads as under :
"154. (1) Every information relating to the commission of a cognizable offence, 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 person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:
Provided that if the information is given by the woman against whom an offence under section 326A, section 326 B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that -
(a) in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.
(2) A copy of the information as recorded under sub-section (1) 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-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police 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."
17. The reading of said rules makes it clear that the language of Rule 5 and that of Section 154 Cr.P.C. is akin. Since Rule 5 talks of information to the Officer In-charge of a police station, the said provisions can never be strictly applied on a Special Judge who has been empowered to pass appropriate orders on an application moved under Section 156(3) Cr.P.C.
18. Thus, this Court differs with the view taken in the case of Soni Devi (Supra) in its second question as decided as to whether it is correct ?
19. Let the matter be placed before a Division Bench of this Court for appropriate decision on the same.
20. Since there is a difference from the view taken in the case of Soni Devi (Supra) by this Court which is the only argument raised by learned counsel for the applicant and there is a prayer for staying the effect and operation of the impugned order, the same is not allowed.
21. Let the matter be placed before Honourable The Chief Justice for nominating a Bench for deciding the issue in question.
(Samit Gopal,J.) Order Date :- 19.7.2022 Naresh