The Allahabad High Court has said in an order that on the application of Section 156(3) of CrPC, the Magistrate does not have the right to take action against the offence under the SC/ST Act. Under Section 14(1) of the Act, only the Special Court has the power to proceed in this matter.
A single-judge bench of Justice Gautam Chowdhary passed this order while hearing an application under Section 482 filed by Soni Devi and other connected applications.
The applicant is the complainant in the case. The applicant belongs to a Scheduled Caste 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 the property of the applicant.
Again on 09.07.2020 at about 3 PM, the opposite party no 2 tried to encroach upon the applicant’s property and when she objected, the opposite party no 2 used caste slurs and beat her up 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.
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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) CrPC 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 application.
S.B. Singh, counsel for the applicant, submitted that the order dated 19.1.2021 passed by the Special Judge (SC/ST Act), Sonbhadra treating the application under Section 156(3) CrPC as a complaint case is against the law.
He further submitted that the applicant makes out a prima facie case for registration of the FIR but the Court below without considering the same has passed an order to convert the application under Section 156 (3) CrPC as a complaint case.
He next submitted that if the information relating to the commission of an offence under the SC/ST Act, if given orally to an officer in charge 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.
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In the case, the complainant had filed an application under Section 156 (3) CrPC 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 also submitted that the Special Judge is not empowered to convert the application under Section 156 (3) CrPC as a complaint case against the offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
Counsel for the applicant said that the FIR ought to have been lodged by the police official concerned. He next submitted that the order passed by the Special Judge is contrary to the provisions of the Act. He also submits that a special duty has been cast upon police officials, on receiving information of incident, to lodge an FIR 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, Additional Government Advocate as well as the 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.
The AGA further submitted that Section 190 CrPC 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.
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On the other hand, counsel for the applicants submitted 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) CrPC stood barred and in matter of SC/ST, the powers of the Magistrate to take cognizance is extinguished due to the aforesaid amendment.
The Court said 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 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.
“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 in charge 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.
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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.
Therefore, the answer to the second question is whether 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, which is the leading case, the Special Judge (SC/ST) Act Sonbhadra has treated the application under Section 156 (3) CrPC as a complaint case order dated 19.01.2021, which in the opinion of the Court is not tenable in the eyes of law,” the Court observed while allowing the applications.
“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”
-the order reads.
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