The main legal point established in the judgment is that non-compliance with the provision of Sub-rule (3) of Rule 5 of the Rules, 1995 does not vitiate the entire criminal proceeding, and a complaint can be filed directly before the concerned Magistrate without resorting to the filing of the F.I.R. or reporting the commission of the offence before the concerned police station.

JUDGMENT :

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 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 :-

“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. Vs. 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 rep