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ALLAHABAD HIGH COURT
Rajan Roy and Sanjay Kumar Pachori, JJ.
Gyanendra Maurya @ Gullu – Petitioner
versus
Union of India Thru. Secy.
Ministry Social Justice and
Empowerment and Ors. – Respondent
Criminal Misc. Writ Petition No.7522 of 2022
Decided on 2.2.2023
(A) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 4(2)(e) read with Rules 5 and 7(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 – Indian Penal Code, 1860 – Sections 376-D and 506 – Criminal Procedure Code, 1973 – Section 4 – Filing of charge-sheet – Statutory provisions cannot be read, understood and applied in an unreasonable manner so as to lead to absurdity and/or to violate fundamental rights of a citizen – Provisions do not necessarily mandate Investigating Officer to file a charge-sheet in each and every case where an FIR has been lodged alleging commission of offence under Act 1989, but it only enjoins upon him to file such charge-sheet where, based on evidence collected during investigation, offence is made out – Certain provisions of Code 1973 have specifically been excluded from their application to proceedings under Act 1989 – Authority to lodge FIR is distinct from authority to take cognizance for dereliction of duty under Section 4 of Act 1989 – Exclusive Special Court or Special Court exercise original criminal jurisdiction – All offences under Act 1989 are to be tried by such Courts under Act 1989 and no other Court has jurisdiction in this regard – They can also take cognizance of an offence directly. (Paras 6, 7, 23, 25 and 33)
(B) Criminal Procedure Code, 1973 – Sections 156(3) and 190 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 4(2)(e) read with Rules 5 and 7(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 – Indian Penal Code, 1860 – Sections 376-D and 506 – Cognizance of offence – There is no exclusion of powers prescribed under Section 156(3) of Code 1973 for such Courts established under Act 1989 – Once such Courts have power to take cognizance of an offence which is referable to Section 190 of Code 1973, directly, then, in view of language used in Section 156 of Code 1973 they can order lodging of FIR and investigation into an offence under Act 1989 in exercise of powers under Section 156(3) of Code 1973 – Offence of gang-rape, as is alleged in FIR, is referable to Section 376-D IPC and carries a sentence which shall not be less than 12 years, which may extend to life, which shall mean imprisonment for remainder of that person’s natural life and with fine, clearly an offence of gang-rape is referable to Section 3(2)(v) of Act 1989. Section 506 IPC, as is alleged in FIR, is referable to schedule read with 3(2)(v) of Act 1989 – Both these offences are referable to Act 1989 and also amenable to jurisdiction of Exclusive Special Courts or Special Courts under said Act – Power under Section 156(3) of Code 1973 has to be exercised by such Exclusive or Special Courts and not Magistrate. (Paras 34, 36 and 41)
Result: Petition dismissed.
JUDGMENT
Rajan Roy, J.—Heard.
2. The petitioner has sought following reliefs in this petition filed under Article 226 of the Constitution of India:—
“(i) Issue a writ order or direction declaring the Section 4(2)(e) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and Rule 7(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Rules) 1995, ultra- vires to Part III of the Constitution of India upto the extent they both necessarily directs for filing of ‘charge sheet’.
(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 02.03.2022 (contained as annexure no. 3 to the writ petition), passed by the Exclusive Special Court, Pratapgarh, with all consequential proceedings, or,
(iii) Issue a writ, order or direction commanding the opposite parties no. 2 and 3 to delete the Section 376-D and 506 I.P.C. from the FIR No. 100 of 2022 registered at P.S. Maheshganj, District Pratapgarh, under Sections 376-D, 506 IPC and 3(2)(v) & 3(2)(va) of the Act 1989.”
3. Vide Relief No. 1, he has sought a declaration that Section 4(2)(e) of the Scheduled Castes and the Scheduled Tribes ( Prevention of Atrocities) Act 1989 (for short ‘the Act 1989) and Rule 7(2) of the Scheduled Castes and the Scheduled Tribes ( Prevention of Atrocities Rules) 1995 (for short ‘the Rules of 1995’) be declared ultra vires Part III of the Constitution of India to the extent the said provisions necessarily direct for filing of charge sheet.
4. In order to consider this issue and relief prayed for, we need refer to Section 4 including sub-Section (2)(e) of the Act 1989 which reads as under:—
“4. Punishment for neglect of duties.—(1) Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully 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.
(2) The duties of public servant referred 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; 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:
Provided that the charges in this regard against the public servant shall be booked on the recommendation of an administrative enquiry.
(3) 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 the Exclusive Special Court and shall give direction for penal proceedings against such public servant.”
Rule 7 of the Rules of 1995 including sub-Rule (2) thereof, vires of which has been challenged, reads as under:—
“7. Investigating Officer.—(1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.
(2) The investigating officer so appoint
The Special Court under the Scheduled Castes and Scheduled Tribes Act can directly invoke Section 156(3) of the CrPC for registration of FIRs if preconditions of Sections 154(1) and 154(3) are met.
The Special Court under the Scheduled Castes and Scheduled Tribes Act cannot take direct cognizance of offences under the IPC without prior committal by a Magistrate, aligning with the hierarchy of c....
The legislative intent behind enacting the special legislation and the requirement for the trial court to commit the case to the competent court.
The Special Court under the SC/ST Act can take cognizance of offences without prior commitment from a Magistrate and amendments have no retrospective effect unless expressly stated.
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”.
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