Chhattisgarh HC: Special court under SC-ST (prevention of atrocities) act has power to direct registration of fir u/s 156(3) crpc

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Misc Petition No.173 of 2018
Order delivered on:27-10-2020

Jaisingh Agrawal,

Vs

State of Chhattisgarh,

Coram: Hon’ble Shri Justice Sanjay K. Agrawal

1. Proceedings of this matter have been takenup for final hearing through video conferencing.

2. In this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’), the following twin question arise for consideration:

1. Whether the Special Court constituted under Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the Act of 1989’) has power and jurisdiction to invoke the provisions contained in Section 156(3) of the Code referring the complaint of the complainant/respondent No.2 herein to the Station House Officer, Police Station AJAK for registration of FIR and consequent investigation?

2. If yes, whether the Special Judge is justified in invoking power and jurisdiction under Section 156(3) of the Code in directing registration of FIR and investigation after finding compliance with the provisions contained in subsections (1) and (3) of Section 154 of the Code?

3. The petitioners calls in question legality, validity and correctness of the impugned order dated 1512018 passed by the learned Special Judge under the Act of 1989, Korba, exercising power under Section 156(3) of the Code by which the learned Special Judge has directed the Station House Officer, Police Station AJAK, Korba to register FIR against the petitioners and to investigate the matter and submit report and to take further consequential action against them.

4. Respondent No.2 herein / complainant Dukhlal Kanwar made a complaint to the Collector, Korba on 2732017, though the complaint was addressed to the Station House Officer, Police Station AJAK, Korba, stating that he is owner and titleholder of the land in dispute situated at Village Chuiya, Tahsil Distt. Korba, bearing Khasra No.214/45 in which petitioner No.1 and other persons have started constructing boundary wall which was opposed by several persons and ultimately, the subject land was demarcated on 2692012,

but thereafter, on 2892012, petitioner No.2 Surendra Jaiswal and others came to the subject land and started working which was opposed by him, then they abused him and threatened him to kill. By the abovestated complaint, the complainant / respondent No.2 herein made request to the Collector, Korba to direct for handing over the possession of subject land to him and to register offences against the concerned persons. Over the complaint, the Collector in his own writing directed the Superintendent of Police, Korba to do the needful and further directed his Reader to enquire the case. It appears that pursuant to the said complaint, the complaint was registered as revenue case and ultimately, on 15122017, the Collector, Korba directed that as per the report of the SubDivisional Officer (Revenue), Korba, petitioner No.1 is in possession of Khasra No.214, area 0.182 hectare, and Section 170B of the Chhattisgarh Land Revenue Code, 1959 (for short, ‘the Land Revenue Code’) is attracted and directed the SubDivisional Officer (Revenue), Korba to initiate proceeding under Section 170B of the Land Revenue Code against the person concerned. Thereafter, it appears that on 742017, the land in dispute was again subjected to demarcation and on 742017, petitioner No.1 also filed a civil suit bearing Civil Suit No.3A/2017 before the Court of 2nd Additional District Judge, Korba. It appears that thereafter,

on 1242017, respondent No.2 along with two other persons namely, Pratap Singh Kanwar and Ghasiya Singh Kanwar, made a complaint to the Superintendent of Police, Korba stating therein that on 742017, some antisocial elements threatened them to withdraw the case relating to the subject land which was demarcated on 742017 and boundary wall already constructed is also being broken, and finally, they prayed that possession of land be handedover to them and their life and property be protected. Similarly,

on 492017 also, respondent No.2 made a complaint to the Superintendent of Police, Korba for registering offence against the petitioners herein, Bhola Soni, Vijay Singh and Darshan Manikpuri under the IPC and the Act of 1989. It appears that finally, no offence was registered, then respondent No.2 on 8112017 filed an application under Section 156(3) read with Section 193 of the Code further read with Section 14 of the Act of 1989 before the Court of the Special Judge under SC ST Act, 1989, Korba, stating inter alia that he has made a complaint to the Station House Officer, Police Station AJAK, Korba on 2732017 and the subject land was demarcated on 2692012. Further, in para 9 of the said application, it has been stated by respondent No.2 that the accused persons have committed cognizable offences which has duly been informed to the Police Station AJAK, Korba

on 2732017 and on 1242017, but no offence has been registered against the petitioners and other persons and therefore Police Station AJAK, Korba be directed to register offences punishable under Sections 294, 506B, 323 120B of the IPC and Sections 3(1)(g), 3(1)(s), 3(1)(d) 3(2)(va) of the Act of 1989. The said application was supported by an affidavit.

5. The learned Special Judge on the said application filed, called for the police report, but the police report ultimately, could not be received as it was not submitted by the concerned Police Station and ultimately, by the impugned order, the learned Special Judge has held that though on 2732017, complaint was made to Police Station AJAK, Korba and

on 1242017, complaint was made to the Superintendent of Police, Korba and though both the complaints discloses commission of cognizable offences, yet FIR was not registered by police, therefore, in view of the principles of law laid down by the Supreme Court in the matter of Lalita Kumari v. Government of Uttar Pradesh and others1, a direction is required to be issued to the Station House Officer, Police Station AJAK, Korba to register FIR and to investigate the matter and submit report to the concerned court. It was ordered accordingly and consequently, FIR for offences under Sections 294, 506B, 323 120B of the IPC and Sections 3(1) (g), 3(1)(s), 3(1)(d) 3(2)(va) of the Act of 1989 was registered against the petitioners on 25012018.

6. Feeling aggrieved against the said order directing registration of FIR and consequent investigation, this petition under Section 482 of the Code has been preferred questioning authority and jurisdiction of the learned Special Judge under SC ST Act on the ground that the Special Judge constituted under Section 14 of the Act of 1989 has no power and jurisdiction to exercise the power under Section 156(3) of the Code, as under Section 156(3) of the Code, only the Magistrate can order for investigation to be made under Section 156(1) of the Code, therefore, the impugned order passed by the learned Special Judge is without jurisdiction and without authority of law. It has also been pleaded that the provisions of subsections of the Code have not been complied with, therefore, even otherwise, the order passed invoking Section 156(3) of the Code is bad in law and it is liable to be quashed.

7. Return has been filed by respondent No.2 herein / complainant stating inter alia that in view of Section 14 of the Act of 1989 and in view of the decision rendered by this Court in the matter of Smt. Achla D Sapre v. Smt. Asha Mahilkar (Rajput) and another2, petition under Section 482 of the Code deserves to be dismissed.

8. Dr. N.K. Shukla, learned Senior Counsel appearing on behalf of the petitioners, would make two fold

submissions: 1. Power and jurisdiction under Section 156(3) of the Code to direct for investigation of any cognizable offence can only be exercised by the Magistrate and the Special Judge constituted under Section 14 of the Act of 1989 has no power and jurisdiction to invoke power and jurisdiction under Section 156(3) of the Code, therefore, the order impugned is without jurisdiction and without authority of law.

2. In alternative, Dr. Shukla, learned Senior Counsel, would submit that even otherwise, the learned Special Judge is not justified in invoking power and jurisdiction under Section 156(3) of the Code, as neither Section 154(1) nor Section 154(3) of the Code have been complied with while making an application under Section 156(3) of the Code, since no document has been filed at any point of time and the complaint dated 2732017 was made to the Station House Officer, Police Station AJAK, Korba though addressed to the SHO, but it has only been submitted to the Collector, Korba in which the Collector directed the Superintendent of Police, Korba to do the needful and further directed his Reader for making enquiry. It was also pointed out that there is no endorsement on the complaint having been served to the SHO, Police Station AJAK and further, except the selfserving statement, there is no document to show that on refusal to registration of offence, any complaint was made to the Superintendent of Police, Korba in compliance of Section 154(3) of the Code by registered post. Even the letter dated 1242017, allegedly filed, is not against petitioner No.1, but it is about some antisocial elements and the complaint dated 492017 available in the record is directly sent to the Superintendent of Police, Korba without complying with the provisions contained in Section 154(1) of the Code. Therefore, in view of the judgment rendered by the Supreme Court in the matter of Priyanka Srivastava and another v. State of Uttar Pradesh and others3, application under Section 156(3) of the Code was not maintainable. As such, the impugned order deserves to be set aside and the present petition deserves to be allowed.

9. Mr. Surfaraj Khan, learned counsel appearing for respondent No.2 herein / complainant, would support the impugned order and submit that since the complaint made to the SHO did not yield any result, therefore, in compliance of Section 154(3) of the Code, ultimately, report was made to the Superintendent of Police and thereafter, application under Section 156(3) was filed which is strictly in accordance with law. He would further submit that in view of the provisions contained in Section 14 of the Act of 1989, after amendment with effect from 2612016, under Section 14 of the Act of 1989, the Special Court constituted under Section 14 shall have power and jurisdiction to directly take cognizance of the offences under the Act of 1989. Therefore, no fault can be found in the impugned order of the learned Special Judge under the Act of 1989 directing registration of FIR and consequent investigation against the petitioners. He would rely upon the decision of this Court in Smt. Achla D Sapre (supra). He would finally submit that the instant petition under Section 482 of the CrPC deserves to be dismissed.

10.I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the record with utmost circumspection.

Answer to Question No.1: 11.

In order to consider the plea raised at the Bar, it would be appropriate to consider the provisions contained in Section 156 of the Code which empowers the police officer to investigate the cognizable case. Subsections (1), (2) and (3) of Section 156 of the Code state as under:

“156. Police officer’s power to investigate
cognizable case.–(1) Any officer in charge of
a police station may, without the order of a
Magistrate, investigate any cognizable case
which a Court having jurisdiction over the
local area within the limits of such station
would have power to inquire into or try under
the provisions of Chapter XIII.

(2) No proceeding of a police officer in
any such case shall at any stage be called in
question on the ground that the case was one
which such officer was not empowered under
this section to investigate.

(3) Any Magistrate empowered under
section 190 may order such an investigation
as abovementioned.”

12.A careful perusal of the aforesaid provisions would reveal that under subsection

(1) of Section 156 of the Code, any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII of the Code. By virtue of subsection

(3) of Section 156 of the Code, any Magistrate empowered under Section 190 of the Code may order such an investigation as abovementioned.

13. At this stage, it would be appropriate to notice the provisions contained in Section 193 of the Code which reads as follows: “

193. Cognizance of offences by Courts of Session.—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. On a careful reading of the aforesaid provision, it is quite vivid that the Court of Session can take cognizance of any offence as a Court of original jurisdiction except as otherwise expressly provided by the Code or by any other law for the time being in force only if the case has been committed to it by a Magistrate.

15. In a decision in the matter of Gangula Ashok and another v. State of A.P.4, their Lordships of the Supreme Court considered the question whether “a Special Court” under the Act of 1989 can take cognizance of any offence without the case being committed to that Court, and resolving the controversy, their Lordships held as under: “

16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a chargesheet cannot straight away be laid down before the Special Court under the Act.”

16.The principle of law laid down by their Lordships of the Supreme Court was followed subsequently by the Supreme court in the matters of Vidyadharan v. State of Kerala5 and M.A.Kuttappan v. E. Krishnan Nayanar and another6. 17.Finally, in the matter of Rattiram Others v. State of Madhya Pradesh through Incharge, Police Station Cantonment, three Judges Bench of the Supreme Court reiterated the principle of law that a complaint or chargesheet cannot straightaway be laid down before the Special Court under the Act, but their Lordships further held that cognizance taken by Sessions Judge directly without commitment of case by Magistrate in accordance with Section 193 CrPC, trial is not automatically vitiated unless failure of justice has occasioned and it is duly established. 18.At this stage, it would be appropriate to notice the provisions contained in the Act of 1989. The Act of 1989 has been constituted to prevent the Commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for special courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. The term “Special Court” is defined in Section 2 (d) of the Act of 1989 and Section 14 speaks about the constitution of Special Court which states as under: “

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.”

19.The Scheduled Castes and the Scheduled Tribes
7 (2012) 4 SCC 516
(Prevention of Atrocities) Amendment Ordinance, 2014
was promulgated on 432014
to amend the Act of 1989,
of which Section 14 provides 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 Ordinance 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 Ordinance:
Provided further that the Courts so
established or specified shall have power to
directly take cognizance of offences under
this Ordinance.
(2) It shall be the duty of the State
Government to establish adequate number of
Courts to ensure that cases under this
Ordinance are disposed of within a period of
two months, as far as possible.
(3) In every trial in the Special Court or
the Exclusive Special Court, the proceedings
shall be continued from daytoday
until all
the witnesses in attendance have been
examined, unless the Special Court or the
Exclusive Special Court finds the adjournment
of the same beyond the following day to be
necessary for reasons to be recorded in
writing:
Provided that when the trial relates to
an offence under this Ordinance, the trial
shall, as far as possible, be completed
within a period of two months from the date
of filing of the charge sheet.”
20.The abovestated
Section 14 of the Ordinance of 2014
would show that by the aforesaid Ordinance,
jurisdiction has been conferred to the Special Courts
to directly take cognizance of offences under the Act
of 1989 as amended by the Ordinance of 2014.
21. The life of the Ordinance was six months and
thereafter, it expired. The Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Amendment
Act, 2015 came into force with effect from 112016
of which Section 14 (1) provides as under: “
14. Special Court and Exclusive Special
Court.—(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 power to
directly take cognizance of offences under
this Act.”
22.The legislative change which has been noticed abovestated
would clearly show that now, by the Amendment
Act, 2015 only w.e.f. 112016,
the Special Courts
have been empowered to take cognizance directly, of
the offences under the Act of 1989. It has been held
so because the Courts of Session are the Special
Courts constituted under Section 14 of the Act of
1989.
23. In Achla D Sapre (supra), this Court considered
the issue after taking in account the legislative
amendment in Section 14 of the Act of 1989, whether
the trial Magistrate can take cognizance of offence
punishable under Section 3 (1) (x) of the Act of 1989
or only it is Special Court constituted under Section
14 of the Act of 1989 and it was held that the trial
Magistrate is not a special court constituted under
Section 14 of the Act, therefore, it has no
jurisdiction to entertain complaint and take
cognizance and Special Courts constituted under
Section 14 of the Act of 1989 have been empowered to
take cognizance of the offence under the Act of 1989
directly w.e.f. 112016.
24.The erstwhile State of Madhya Pradesh in exercise of
power conferred under Section 14 of the Act of 1989
by notification dated 26101995
notified the
Sessions Judge of each of the districts to exercise
power and jurisdiction under the Act of 1989.
Thereafter, the State of Chhattisgarh by its
notification dated 422015
in exercise of power
conferred under Section 14 of the Act of 1989 with
the concurrence of Hon’ble the Chief Justice of this
Court, has established the Exclusive Special Courts
for trial of the offence under the Act of 1989.
25.Thus, the Special Court having established under
Section 14 of the Act of 1989 by notification has
power and jurisdiction to take cognizance of the
offence under the provisions of the Act of 1989
directly without committal proceeding and the
Magistrate is not a Special Court notified by the
State Government within the meaning of Section 14 of
the Act of 1989 read with Section 193 of the Code and
therefore, the Magistrate is not empowered to
entertain complaint under the Act of 1989.
26.The question as to whether the Court of Special Judge
under the Prevention of Corruption Act, 1947 can have
power and jurisdiction as a Court of original
jurisdiction and can be treated as a Court of
original criminal jurisdiction, came up for
consideration before the Supreme Court in the matter
of A.R. Antulay v. Ramdas Sriniwas Nayak and another
AIR 1984 SC 718  (Constitution Bench) and it was held by their
Lordships that a private complaint can be entertained
by the Special Judge in respect of the offences
committed by public servants under the PC Act. It was
further held that on accepting the principles of
criminal jurisprudence anyone can set or put the
criminal law into motion except where statute
enacting or creating an offence indicates to the
contrary. Their Lordships clearly held that the
provisions of the CrPC can be exercised by the
Special Judge except the provisions which are clearly
barred under the Act. It has also been held by their
Lordships that the Court of a Special Judge is a
Court of original criminal jurisdiction. It was
further held that as a Court of original criminal
jurisdiction in order to make it functionally
oriented some powers were conferred by the statute
setting up the Court. Except those specifically
conferred and specifically denied, it has to function
as a Court of original criminal jurisdiction not
being hide bound by the terminological status
description of Magistrate or a Court of Session.
Under the Code it will enjoy all powers which a Court
of original criminal jurisdiction enjoys save and
except the ones specifically denied. Their Lordships
observed as under: ”
27. It is, however, necessary to decide with
precision and accuracy the position of a
Special Judge and the Court over which he
presides styled as the Court of a special
Judge because unending confusions have arisen
by either assimilating him with a Magistrate
or with a Sessions Court.”
27.It was noticed by their Lordships of the Supreme
Court in A.R. Antulay (supra) that experience of
several years after the passing of the Prevention of
Corruption Act, 1947 showed that a specific forum for
trial of such offences was necessary and this
realisation led to the enactment of the Criminal Law
Amendment Act, 1952. After referring to Section 6 of
the Code according to which there are four types of
Criminal Courts functioning under the High Court
namely, Court of Session, Judicial Magistrates of the
First Class, Judicial Magistrates of the Second Class
and Executive Magistrates, the Supreme Court observed
as under: ”
As already pointed out, there were four
types of Criminal Courts functioning under
the High Court. To this list was added the
Court of a special Judge.”
The Court further observed as under: ”
Now that a new Criminal Court was being set
up, the Legislature took the first step of
providing its comparative position in the
hierarchy of Courts under Section 6, Cr. P.
C. by bringing it on level more or less
comparable to the Court of Session, but in
order to avoid any confusion arising out of
comparison by level, it was made explicit in
Section 8(1) itself that it is not a Court of
Sessions because it can take cognizance of
offences without commitment as contemplated
by Section 193, Cr. P. C.. Undoubtedly in
Section 8(3) it was clearly laid down that
subject to the provisions of subsections
(1)
and (2) of Section 8, the Court of special
Judge shall be deemed to be a Court of
Sessions trying cases without a jury or
without the aid of assessors. In contradistinction
to the Sessions Court this new
Court was to be a Court of original
jurisdiction. The Legislature then proceeded
to specify which out of the various
procedures set out in the Code, this new
Court, shall follow for trial of offences
before it.”
Dealing with the query whether the Special Judge
becomes a Magistrate, their Lordships held as
under :”
This is the fallacy of the whole approach.
In fact, in order to give full effect to
Section 8(1), the only thing to do is to read
Special Judge in Sections 238 to 250 wherever
the expression ‘Magistrate’ occurs. This is
what is called legislation by incorporation.
Similarly, where the question of taking
cognizance arises, it is futile to go in
search of the fact whether for purposes of
Section 190 which conferred power on the
Magistrate to take cognizance of the offence,
special Judge is a Magistrate? What is to be
done is that one has to read the expression
‘special Judge’ in place of Magistrate, and
the whole thing becomes crystal clear. The
Legislature wherever it found the gray area
clarified it by making specific provision
such as the one in subsection
(2) of Section
8 and to leave no one in doubt further
provided in subsection
(3) that all the
provisions of the Criminal P.C. shall so far
as they are not inconsistent with the Act
apply to the proceedings before a special
Judge. At the time when the 1952 Act was
enacted, what was in operation was the
Criminal P.C., 1898. It did not envisage any
Court of a special Judge and the Legislature
never wanted to draw up an exhaustive Code of
Procedure for this new Criminal Court which
was being set up. … The net outcome of this
position is that a new Court of original
jurisdiction was set up and whenever a
question arose as to what are its powers in
respect of specific question brought before
it as Court of original criminal
jurisdiction, it had to refer to the Criminal
P.C. undaunted by any designation claptrap.
When taking cognizance, a Court of special
Judge enjoyed powers under Sec. 190. When
trying cases, it is obligatory to follow the
procedure for trial of warrant cases by a
Magistrate though as and by way of status it
was equated with a Court of Session. The
entire argument inviting us to specifically
decide whether a Court of a special Judge for
a certain purpose is a Court of Magistrate or
a Court of Session revolves round a mistaken
belief that a special Judge has to be one or
the other and must fit in in the slot of a
Magistrate or a Court of Session. Such an
approach would strangulate the functioning of
the Court and must be eschewed. Shorn of all
embellishment, the Court of a special Judge
is a Court of original criminal jurisdiction.
As a Court of original criminal jurisdiction
in order to make it functionally oriented,
some powers were conferred by the statute
setting up the Court. Except those
specifically conferred and specifically
denied, it has to function as a Court of
original criminal jurisdiction not being
hidebound
by the terminological status
description of Magistrate or a Court of
Session. Under the Code, it will enjoy all
powers which a Court of original criminal
jurisdiction enjoys, save and except the ones
specifically denied.
28. Section 9 of the 1952 Act would equally
be helpful in this behalf. Once Court of a
special Judge is a Court of original criminal
jurisdiction, it became necessary to provide
whether it is subordinate to the High Court,
whether appeal and revision against its
judgments and orders would lie to the High
Court and whether the High Court would have
general superintendence over a Court of
special Judge as it has over all Criminal
Courts as enumerated in S. 6 of the Code of
Criminal P.C. The Court of a special Judge,
once created by an independent statute, has
been brought as a Court of original criminal
jurisdiction under the High Court because
Section 9 confers on the High Court all the
powers conferred by Chapters XXXI and XXXIII
of the Criminal P.C., 1898 on a High Court as
if the court of special Judge were a Court of
Session trying cases without a jury within
the local limits of the jurisdiction of the
High Court. Therefore, there is no
gainsaying the fact that a new Criminal Court
with a name, designation and qualification of
the officer eligible to preside over it with
powers specified and the particular procedure
which it must follow has been set up under
the 1952 Act. The Court has to be treated as
a Court of original criminal jurisdiction and
shall have all the powers as any Court of
original criminal jurisdiction has under the
Criminal P.C., except those specifically
excluded.”
28.From the aforesaid pronouncement of law rendered by
the Constitution Bench of the Supreme Court, it is
quite vivid that under the provisions of the
Prevention of Corruption Act, the Special Judge is
not prohibited from exercising power and jurisdiction
under Section 156(3) of the Code when there is no
exclusion of power in respect of the point raised.
29.In the matter of Raghunathan v. State of Kerala 2002 CriLJ 337,
it has been held by the Kerala High Court that power
under Section 156(3) of the Code can be invoked by
the Special Judge, as the Special Judge under the
Prevention of Corruption Act will enjoy all powers
which a Court of original criminal jurisdiction
enjoys save and except these are specifically denied.
Similar proposition has been laid down by the
Karnataka High Court in the matter of B.S.
Yeddyurappa v. State of Karnataka and others
2012 CriLJ 1989 holding that the Special Judge
under the Prevention of
Corruption Act, 1988 can invoke power and
jurisdiction under Section 156(3) of the Code in
referring the complaint of the complainant to Special
Karnataka Lokayukt for investigation and to report.
30.The Full Bench of the M.P. High Court in the matter
of Anand Swaroop Tiwari v. Ram Ratan Jatav and
others1996 MPLJ 141 relied upon the decision
of the Supreme Court
in A.R. Antulay (supra) and other decisions and in
the result, clearly held as under: “(
a) Special Courts under the Act are not to
function as Sessions Court, but as Courts ‘
of original jurisdiction’.
(b) Proceedings of Special Court are governed
by Section 190, Chapters XV, XVI (other than
Section 209) as also Chapters XIX and XX as
the case may be and such other provisions of
the Code as are not inconsistent with the
scheme and provisions of the Act, reading
“Special Courts” wherever the expression
“Magistrate” occurs.
(c) Section 193 of the Code of Criminal
Procedure does not apply to proceedings under
the Act and committal orders are not
required.
(d) Special Court can take cognizance on
private complaints after following the
procedure provided in the Code in relation to
private complaints.
(e) Where cognizance has already been taken
on the basis of committal orders in Police
challan cases, it is not necessary for the
Courts to retrace their steps or to take
cognizance afresh.
(f) Where cognizance has already been taken
on the basis of committal orders in private
complaint cases, the Special Courts may deal
with the cases as if they are dealing with
private complaints under Section 200 of the
Code.”
31.The decision rendered by the Full Bench of the M.P.
High Court in Anand Swaroop Tiwari (supra) has
further been followed by the M.P. High Court in the
matter of J.N. Fuloria v. Benibai and others 2000(1) MPLJ 459.
32.Thus, from the aforesaid proposition of law rendered
by the Supreme Court in A.R. Antulay (supra) and the
M.P. High Court in Anand Swaroop Tiwari (supra), it
is quite vivid that the Special Court constituted
under Section 14 of the Act of 1989 is the criminal
court of original jurisdiction and is not governed by
Section 193 of the Code, and the Special Court can
take cognizance in any of the circumstances referred
to in Section 190 of the Code and is governed by
Chapters XV XVI of the Code and such other
provisions of the Code which are not inconsistent
with the status and functions as Courts of original
jurisdiction. Therefore, the Special Courts
constituted under the Act of 1989 will also have
power and jurisdiction to invoke Section 156(3) of
the Code to direct investigation in exercise of power
conferred, to the Station House Officer subject to
fulfillment of making two prior applications under
Section 154(1) and thereafter under Section 154(3) of
the Code by the complainant. As such, I do not find
any merit in the submission of learned Senior Counsel
for the petitioners that the Special Judge under SC
ST Act has no power and jurisdiction to invoke
Section 156(3) of the Code and to direct registration
of FIR and investigation. Such a submission being
meritless and substanceless deserves to be and is
accordingly rejected.
Answer to Question No.2: 33.
Having answered question No.1 against the petitioners
and in favour of respondent No.2, reverting to the
second question whether the learned Special Judge is
justified in invoking power and jurisdiction under
Section 156(3) of the Code after finding compliance
with the provisions contained in subsections
(1)
(3) of Section 154 of the Code, it would be necessary
to point out here that in order to make a duly
constituted application for invoking the jurisdiction
of the learned Special Judge under Section 156(3) of
the Code, compliance of subsections
(1) (3) of
Section 154 of the Code would be absolutely necessary
rather it would be sinequanon
for making the
application under Section 156(1) of the Code
maintainable.
34.In order to appreciate this point, it would be
appropriate to notice the provisions contained in
Section 154(1), (2) and (3) of the Code which states
as under:“
154. Information in cognizable cases.(
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 326B, section
354, section 354A, section 354B, section
354C, section 354D, section 376, section
376A, section 376B, section 376C, section
376D, section 376E or section 509 of the
Indian Penal Code 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, section1 376AB,
section 376B, section 376C, section
376D, section 376E or section 509 of
the Indian Penal Code 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 video graphed;
(c) the police officer shall get the
statement of the person recorded by a
Judicial Magistrate under clause (a) of
subsection
(5A) of section 164 as soon
as possible.
(2) A copy of the information as recorded
under subSection
(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 subSection
(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. ”
35.From the focused perusal of Section 154(1) of the
Code, it is quite vivid that every information
relating to commission of cognizable offence, if
given orally to 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 given in writing or reduced in writing as
abovesaid
shall be signed by person giving it and
substance thereof shall be entered into book kept by
such officer. Subsection
(3) of Section 154 of the
Code provides the procedure to be followed by
informant, if officer in charge of a police station
refuses to record the information referred to Section
154(1) of the Code and mandates that substance of
such information in writing may be sent by post, to
the Superintendent of Police concerned, who if
satisfied that such information discloses commission
of cognizable offence either investigate himself or
direct an officer subordinate
to him to investigate
in the manner provided by the Code.
36.Their Lordships of the Supreme Court in the matter of
Priyanka Srivastava (supra) laid down duty and
approach of Magistrate while exercising power under
Section 156(3) of the Code and highlighted
preconditions to be satisfied to maintain the
application under Section 156(3). It has also been
held that power under Section 156(3) warrants
application of judicial mind and there has to be
prior application under Section 154(1) and 154(3) of
the Code. It has been held as under: “
29. At this stage it is seemly to state that
power under Section 156(3) warrants
application of judicial mind. A court of law
is involved. It is not the police taking
steps at the stage of Section 154 of the
Code. A litigant at his own whim cannot
invoke the authority of the Magistrate. A
principled and really grieved citizen with
clean hands must have free access to invoke
the said power. It protects the citizens but
when pervert litigations takes this route to
harass their fellows citizens, efforts are to
be made to scuttle and curb the same.
30. In our considered opinion, a stage has
come in this country where Section 156(3)
CrPC applications are to be supported by an
affidavit duly sworn by the applicant who
seeks the invocation of the jurisdiction of
the Magistrate. That apart, in an
appropriate case, the learned Magistrate
would be well advised to verify the truth and
also can verify the veracity of the
allegations. This affidavit can make the
applicant more responsible. We are compelled
to say so as such kind of applications are
being filed in a routine manner without
taking any responsibility whatsoever only to
harass certain persons. That apart, it
becomes more disturbing and alarming when one
tries to pick up people who are passing
orders under a statutory provision which can
be challenged under the framework of the said
Act or under Article 226 of the Constitution
of India. But it cannot be done to take
undue advantage in a criminal court as if
somebody is determined to settle the scores.
31. We have already indicated that there has
to be prior applications under Section 154(1)
and 154(3) while filing a petition under
Section 156(3). Both the aspects should be
clearly spelt out in the application and
necessary documents to that effect shall be
filed. The warrant for giving a direction
that an application under Section 156(3) be
supported by an affidavit is so that the
person making the application should be
conscious and also endeavour to see that no
false affidavit is made. It is because once
an affidavit is found to be false, he will be
liable for prosecution in accordance with
law. This will deter him to casually invoke
the authority of the Magistrate under Section
156(3). That apart, we have already stated
that the veracity of the same can also be
verified by the learned Magistrate, regard
being had to the nature of allegations of the
case. We are compelled to say so as a number
of cases pertaining to fiscal sphere,
matrimonial dispute/family disputes,
commercial offences, medical negligence
cases, corruption cases and the cases where
there is abnormal delay/laches in initiating
criminal prosecution, as are illustrated in
Lalita Kumari (supra) are being filed. That
apart, the learned Magistrate would also be
aware of the delay in lodging of the FIR.“
37. The principle of law laid down by their
Lordships of the Supreme Court in Priyanka Srivastava
(supra) has been followed by this Court in the matter
of Sanjay Narang v. Rashmi Priyanka13.
38.Now, coming to the facts of the case, the question
would be, whether Sections 154(1) and 154(3) of the
Code have been complied with or not by respondent
No.2 before making an application under Section
156(3) of the Code ?
39.Along with the present petition under Section 482 of
the Code, copy of the application filed under
Sections 154(1) and 154(3) of the Code have not been
filed and it has been stated at the Bar by learned
counsel for respondent No.2 that those documents are
available in the original record. As stated in para
9 of the application under Section 156(3) read with
Section 193 of the Code further read with Section 14
of the Act of 1989, on 2732017,
complaint was made
to the Station House Officer, Police Station AJAK,
Korba and on 1242017,
complaint was made to the
Superintendent of Police, Korba. In view of those
submissions, original records (scanned copy)
containing application under Section 156(3) of the
13 ILR 2020 Chhattisgarh 1182
Code and documents were called and in the original
record (scan copy), first complaint made by
respondent No.2, that is available, was made on 2732017
(page 35). A careful perusal of the aforesaid
letter / complaint dated 2732017
would show that
though the complaint is addressed to the Station
House Officer, but tenor and texture of the complaint
reveals that request was made to the Collector and
the Collector appears to have directed the
Superintendent of Police to do the needful and also
directed the Reader to enquire into the matter and
thereafter, it appears that on 1242017,
respondent
No.2 and two other persons have made complaint to the
Superintendent of Police, Korba which states as
under: Vernacular omitted
40.This complaint refers to some threatening given by
some antisocial elements to respondent No.2 and two
others on the date of demarcation of land of the
complainants therein on 742017
to withdraw the case
and dismantling the boundary wall. It is not in
continuation of proceeding under Section 154(1) of
the Code which has not been preferred any point of
time. Similarly, there is one more complaint dated
2-9-2017
made by respondent No.2 which is available
on record in which in the list of attachments /
enclosures, complaint dated 2732017
has been
referred to. The said complaint dated 292017
has
been presented to the Superintendent of Police, Korba
on 492017.
A careful perusal of the aforesaid
three complaints which are available on record would
show that though the letter / complaint dated 2732017
has been said to be made to the Station House
Officer (already noticed hereinabove), but it has
been addressed to the Collector and the Collector has
passed necessary order on the said complaint. The
Collector has also passed order on 15122017
directing the case to be registered against the
persons concerned under Section 170B
of the
Chhattisgarh Land Revenue Code. Similarly, the
second complaint made to the Superintendent of Police
on 1242017
is not a complaint either under Section
154(1) or 154(3) of the Code, it is altogether a
different complaint as since the date of second
demarcation of land on 742017,
some antisocial
elements are threatening respondent No.2 to withdraw
the case and in respect of dismantling the boundary
wall. Likewise, third complaint has been made to the
Superintendent of Police on 472019
in which there
is mention of complaint dated 2732017
which is
reproduced hereinbelow
for sake of completeness: Vernaculars omitted
41.This complaint dated 2732017
though was addressed
to the SHO, Police Station AJAK, Korba, but it is a
letter made to the Collector, Korba. Even the prayer
made in the complaint dated 2732017
is only to the
Collector and the Collector has passed order therein
also. In fact, though compliance of Section 154(1)
of the Code to the SHO has been claimed to be made,
but it is not born out from the record. There is no
information about the commission of cognizable
offence in writing made before the Station House
Officer (AJAK) giving that the information relating
to cognizable offences and further there is no
evidence that said SHO police station has refused to
register FIR and further refused to investigate the
matter. There is no document or evidence on record
that on refusal of SHO, respondent No.2 has sent the
substance of information relating to commission of
cognizable offence in writing to the SP, Korba for
investigation. As such, it appears that in the
instant case, there is total noncompliance
of
Sections 154(1) and 154(3) of the Code.
42.The Supreme Court in Priyanka Srivastava (supra) has
clearly held that in order to file a duly competent
application under Section 156(3) of the Code there
has to be existence of prior applications under
Sections 154(1) and 154(3) of the Code, both these
aspects should be clearly spelt out in the

application under Section 156(3) of the Code and
necessary documents to that effect has to be filed in
order to make the application under Section 156(3) of
the Code to be duly constituted. Even the record
before the Special Judge which has been requisitioned
and scanned, does not have any document that has been
filed at any point of time to show that information
referred to in Section 154(1) of the Code about the
commission of cognizable offence was firstly given to
the SHO and upon refusal by SHO, substance of
information in writing about commission of cognizable
offence was given to the Superintendent of Police,
Korba under Section 154(3) of the Code on knowing
the decision of the SHO in not registering the FIR
giving reason to file application under Section
156(3) of the Code as mandated.
43. The entire effort appears to have been done by
the complainant / respondent No.2 herein to get the
possession of the subject land by making complaint to
the Collector and other authorities, as on 2732017,
main prayer was made before the Collector for
directing return of possession of the subject land.
Even otherwise, on 1242017
also, complaint was made
relating to some dispute with regard to withdrawal of
case and dismantling of boundary wall. On 492017,
finally, the Superintendent of Police was informed,
but again letter dated 2732017
was enclosed as
having been informed to the SHO. As already noticed
hereinabove,
the letter / complaint dated 2732017
was addressed to the Collector, though it was
formally addressed to the SHO, which had not been
done, but it was mainly addressed / prayer was made
to the Collector and the Collector has also passed
order on that complaint / letter. As such, there
is total noncompliance
of the provisions contained
in Section 154 of the Code and both the preconditions
of making application under Sections 154(1) and
154(3) are absolutely missing, as the complainant has
not sent the substance of information to the SHO
(AJAK) under Section 154(1) of the Code.
44.Thus answering the question No.2, it is held that the
impugned order passed by the learned Special Judge
invoking power under Section 156(3) of the Code is
totally without jurisdiction and without authority of
law apart from being in teeth of the judgment
rendered by the Supreme Court in Priyanka Srivastava
(supra) followed by this Court in Sanjay Narang
(supra).
45. As a fallout and consequence of the aforesaid
discussion, the impugned order dated 1512018
passed
by the Special Judge, Korba in unregistered complaint
case (Dukhlal Kanwar v. Jaisingh Agrawal and four
others) is hereby quashed and the consequential
action of registration of FIR in Crime No.5/2018 at
Police StationAJAK,
Korba for offences under
Sections 294, 506B, 323 120B of the IPC and
Sections 3(1)(g), 3(1)(s), 3(1)(d) 3(2)(va) of the
Act of 1989 is also hereby quashed.
46.The petition is allowed to the extent sketched
hereinabove.
Sd/(Sanjay K. Agrawal)
Judge
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Misc. Petition No.173 of 2018
Petitioners Jaisingh Agrawal and another
Versus
Respondents State of Chhattisgarh
another
(Headnote)
(English)
Special Court constituted under Section 14 of the
Scheduled Caste and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 has power and jurisdiction to
invoke provisions contained in Section 156(3) of the CrPC
and direct for registration of FIR and investigation.

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