Allahabad High Court
Soni Devi vs State Of U.P. And 10 Others on 7 April, 2022
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 86 Case :- APPLICATION U/S 482 No. - 12864 of 2021 Applicant :- Soni Devi Opposite Party :- State Of U.P. And 10 Others Counsel for Applicant :- Rashid Ali Counsel for Opposite Party :- G.A.,Saurabh Kumar,Sudhir Kumar WITH Case :- APPLICATION U/S 482 No. - 27758 of 2021 Applicant :- Prem And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sandeep Kumar Srivastava Counsel for Opposite Party :- G.A. WITH Case :- APPLICATION U/S 482 No. - 27812 of 2021 Applicant :- Arvind Batham And Another Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Kamal Singh Counsel for Opposite Party :- G.A. WITH Case :- APPLICATION U/S 482 No. - 4382 of 2022 Applicant :- Subhash Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Moeez Uddin,Mohammad Asif Counsel for Opposite Party :- G.A. WITH Case :- APPLICATION U/S 482 No. - 6688 of 2022 Applicant :- Dilip Patwa And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amar Nath Tiwari,Brij Lal Shukla Counsel for Opposite Party :- G.A. WITH Case :- CRIMINAL REVISION No. - 2363 of 2021 Revisionist :- Anil Nishad Opposite Party :- State Of U.P. And 13 Others Counsel for Revisionist :- Akhilesh Tripathi Counsel for Opposite Party :- G.A. Hon'ble Gautam Chowdhary,J.
Heard Sri S.B.Singh, learned counsel holding brief of Sri Rashid Ali, learned counsel for the applicant in leading application under Section 482 Cr.P.C. along with other counsel in the connected applications, Sri Sudhir Kumar Agarwal, learned counsel for the opposite party no.2 and Sri Rajeshwar Singh, along with Sri Rakesh Chandra Srivastava learned A.G.As. assisted by Sri Madnesh Prasad Singh, State Law Officer learned counsel for the State.
The germane facts of the aforesaid applications are as under:
(1) APPLICATION U/S 482 No. - 12864 of 2021 The applicant is the complainant in the present case.
The applicant belongs to Scheduled Caste category having bhumidhar of Khasra plot situated in Village Asana, which is adjacent to the property of the opposite party no.2. The opposite party no.2 started raising illegal construction over the plot of applicant and when she resisted, the opposite party no.2 herself moved an application for demarcation of her boundary, upon which the Sub-Divisional-Officer after calling for the report from the Revenue Inspector, measured the land and it was found that the opposite party no.2 has illegally entered into the property of the applicant. Again on 09.07.2020 at about 3 P.M. the opposite party no.2 tried to encroached upon the applicant's property and when she objected, the opposite party no.2 used caste indicating words and had beaten her in which she sustained injuries which were examined. She moved an application before the concerned police station for registering the case but the same was not lodged. Thereafter she moved an application before the Superintendent of Police on 27.07.2020 but to no avail. Thus, she was constrained to file an application under Section 156 (3) Cr.P.C. before the Special Judge SC/ST Act, which was treated as a complaint case vide order dated 19.01.2021, which order is impugned in the present application.
(2) APPLICATION U/S 482 No. - 27758 of 2021 The applicants in this application are accused persons.
The opposite party no.2 had given Rs. 1,68,000/- to the applicant no.1 for executing a sale deed in his favour, however neither the sale deed was executed nor the amount was returned. On 07.10.2019 at about 3 P.M. the opposite party no.2 along with co-villagers Mobin, Sanjay, Furquan and Jai Karan reached the house of the applicant no.1 Prem, where all the accused persons (applicants) came out with lathi and danda, used Un-Parliamentary language and caste indicating words. When the informant/opposite party no.2 went to lodge a report, his report was not lodged, due to which, the opposite party no.2 sent an application before the Superintendent of Police but no heed was paid, therefore the opposite party no.2 moved an application under Section 156 (3) Cr.P.C. which was treated as a complaint case vide order dated 07.09.2020 in which, after recording of the statements under Sections 200 and 202 Cr.P.C. the learned Additional Sessions Judge/Special Judge (SC/ST Act), Amroha vide order dated 19.10.2021 summoned the accused-applicants to face trial under Sections 323, 504, 506 I.P.C. Section 3 (1) Dha SC/ST Act, Police Station Hasanpur, District Amroha. Being aggrieved by the summoning order, the accused-applicants have challenged the entire proceedings pursuant to the summoning order before this Court.
(3) APPLICATION U/S 482 No. - 27812 of 2021 The applicants in this application are accused in the present case.
On 28.07.2019 at about 4 P.M. when the opposite party no.2 was feeding her cows in the garden, the applicants armed with Danda and Axe came and started abusing her using caste indicating remarks and asked her as to how her cows entered into their field upon which altercation took place and they pushed her, due to which she fell down. Thereafter they mercilessly beaten her cows due to which the udders of the cows got burst. The opposite party no.2 returned to her house and told the entire happening to her husband. Again at about 11 P.M. the accused-applicants came to her house and pelted stones upon her door, used caste indicating words but due to fear, she did not open the door. Her husband made a call on 100 number and intimated the police about the incident. Thereafter, she went to lodge a first information report at Police Station Churki but the same was not lodged and a written report to the Superintendent of Police, Jalaun at Orai was sent by registered post on 03.08.2019 but the same met with same fate. Being aggrieved by the same, the opposite party no.2 filed an application under Section 156 (3) Cr.P.C. in the Court of Special Judge (SC/ST Act), Jalaun at Orai on 07.08.2019, which was treated as complaint case and registered as Complaint Case No.51 of 2019 (Smt. Usha Devi Vs. Arvind Batham and others). After recording of the statements under Sections 200 and 202 Cr.P.C., the accused-applicants were summoned to face trial under Sections 504, 506 I.P.C. and Section 3 (1) (Da) (Dha) of SC/ST Act, Police Station Churkhi, District Jalaun vide order dated 29.10.2021. The accused-applicants by means of the instant application have challenged the impugned summoning order dated 29.10.2021 passed in the aforesaid complaint case.
(4) APPLICATION U/S 482 No. - 4382 of 2022 The applicant is the complainant in the instant case.
The applicant filed an application under Section 156 (3) Cr.P.C. in the Court of Special Judge (SC/ST Act) Allahabad on 03.09.2021 with the averments that he came to know through his acquaintance Sri Guddo Mishra (Opposite party No.4) the selling of land by one Jamuna Prasad (opposite party no.3) situated at Village Brijsinghpur alias Ramgarh which is near to the house of his in-laws, he approached Jamuna Prasad and Arazi No. 256 area 0.2005 Hectare was agreed to be sold for a sale consideration of Rs. 10,00,000/-. Thereafter, said Jamuna Prasad (opposite party no.3) told the applicant to have conversaton regarding land through Guddo Mishra (opposite party no.4) and whenever Guddo Mishra (opposite party no.4) would ask him to execute the deed, the deed will be executed. With regard to the aforesaid transaction, Rs.50,000/- was advanced on 22.06.2021, to the Jamuna Prasad (opposite party no.3) in presence of Guddo Mishra (opposite party no.4) as well as in presence of witnesses namely Ram Murat, Pyare Lal, Samarjeet and Anil Kumar. Against which, the opposite party no.3 Jamuna Prasad issued a receipt on a stamp paper of Rs. 10 and the remaining Rs. 9,50,000/- was agreed to be paid through cheque at the time of execution of the sale deed. On 01.08.2021 the Guddo Mishra-opposite party no.4 came to the applicant and stated that Jamuna Prasad-opposite party no.4 is in urgent need of money and now he wants Rs. 4 lacs in cash, remaining Rs. 5,50,000/- through cheque. He further told to get the sale deed executed within one or two days. The applicant somehow managed the money and rushed to the Tehsil Soraon, District Allahabad on 03.08.2021 for execution of the sale deed in his favour of his wife, namely, Smt. Usha. The accused-opposite party nos. 3 and 4 asked the applicant to handover the cash and cheque amount, whereupon, cheques nos. 227225 and 227226 amounting to Rs. 2,50,000/- and Rs. 3,00,000/- respectively and cash Rs. 4 lacs were handed over to the opposite party no.3-Jamuna Prasad in presence of witnesses Gyan Chand and Anil in the Tehsil premises. The opposite party no.3 after taking the cheques and cash handed over to opposite party no.4 and asked him to count the same, in the meantime, he was putting his signatures on the deed. The opposite party no.4 Guddo Mishra took away the cheques and cash and at the time of putting signatures and thumb impression on the photo copy of the deed in front of the Registrar, the accused-opposite party no.3 Jamuna Prasad avoided the same and told to wait for Guddo Mishra to come. In the meantime the opposite party no.3 also went away on the pretext that he is going to search Guddo Mishra-opposite party no.3 but he did not return till late evening. On the next day, the applicant alongwith his associates had traced out the opposite party nos. 3 and 4, who abused him and used caste indicating words and threatened them to forget the money, failing which to face dire consequences. With regard to the aforesaid incident, the applicant had given an application before the Station House Officer, Police Station Soraon, District Allahabad but nothing was done, therefore the applicant sent an application dated 12.08.2021 before the Senior Superintendent of Police, Prayagraj through registered post, however nothing was done and thus the applicant was constrained to file an application under Section 156 (3) Cr.P.C. before the Special Judge (SC/ST) Act, Allahabad which was dismissed vide order dated 12.10.2021.
(5) APPLICATION U/S 482 No. - 6688 of 2022 The subject matter in the instant application is different from the aforesaid applications and it appears that due to inadvertent the same has been wrongly connected with the present case.
(6) CRIMINAL REVISION No. - 2363 of 2021 The subject matter in the present revision is also different from the aforesaid applications and it appears that due to inadvertent the same has been wrongly connected with the present case.
Sri S.B.Singh, learned counsel for the applicant submits that the order dated 19.1.2021 passed by the Special Judge (SC/ST Act), Sonbhadra treating the application under Section 156(3) Cr.P.C. as a complaint case is against the law. He further submits that the applicant makes out a prima facie case for registration of the F.I.R. but the learned Court below without considering the same has passed an order to convert the application under Section 156 (3) Cr.P.c. as a complaint case. He next submits that if the information relating to the commission of an offence under the SC/ST Act, if given orally to an officer incharge of the police station that should be reduced in writing or under his direction and be read over to the informant and every such information whether given in writing or reduced to writing as aforestated, shall be signed by the persons giving it and the substance thereof shall be entered in a book maintained by the said Police Station. In the instant case, the complainant had filed an application under Section 156 (3) Cr.P.C. for registration of the case, which was rejected. On the other hand, the Court below has committed an illegality by treating the case as a complaint case. He next submits that the Special Judge is not empowered to convert the application under Section 156 (3) Cr.P.C. as a complaint case against the offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. He next submits that the F.I.R. ought to have been lodged by the concerned official of the Police station. He next submits that the order passed by learned Special Judge is contrary to the provisions of the Act. He also submits that a special duty has been casted upon the police officials, on receiving information of incident, to lodge an F.I.R. and in case of failure to do so, provision has been made for awarding punishment under section 4 of the Act.
On the other hand, learned A.G.A. as well as learned counsel for the opposite party no.2 has submitted that the impugned orders have been passed in accordance with law after considering the factual and legal aspects of the matter and thus there is no illegality in the impugned orders. Learned A.G.A. further submits that Section 190 Cr.P.C. provides for cognizance of an offence by the Magistrate and sub-Section (1) (a) provides that any Magistrate of the first class and any Magistrate of second class specially empowered in this behalf under sub-Section (2) may take cognizance of any offence upon receiving a complaint of facts which constitute such offences.
On the other hand, learned counsel for the applicants submits that after the amendment in the Section 14 of SC/ST Act, powers have been conferred upon Special Judge and therefore Section 190 (1) (a) Cr.P.C. stood barred and in matter of SC/ST, the powers of the learned Magistrate to take cognizance is extinguished due to the aforesaid amendment.
Now the question before this Court is to see, 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, 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) and the second question before this Court is, whether the Special Judge can treat the application under Section 156 (3) Cr.P.C. as a complaint case or not.
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.
Order Date :- April 7, 2022 (Gautam Chowdhary, J.) S.Ali