Renu Katheria vs State Of U.P. And 6 Others
2023 Latest Caselaw 5836 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 88
 

 
Case :- CRIMINAL APPEAL No. - 9227 of 2022
 

 
Appellant :- Renu Katheria
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Appellant :- Adil Jamal,Shabeh Jamal
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the appellant and learned A.G.A. for the State. None has appeared on behalf of the respondent Nos. 2 to 7 despite service of notice.

2. This criminal appeal has been preferred under Section 14-A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST Act') , against the order dated 29.09.2022, passed by learned Special Judge (SC/ST Act), Kanpur Nagar, in Criminal Misc. Case No. 717/2022 (Renu Katheria Vs. Chameli Bai and others), under Section 156(3) Cr.P.C., Police Station Kakadeo, District Kanpur Nagar, whereby the application filed by appellant under Section 156(3) Cr.P.C. has been rejected.

3. It has been argued by learned counsel for the appellant that the appellant is a member of scheduled caste and she has filed an application under Section 156(3) Cr.P.C. against the respondent Nos. 2 to 7 alleging that they have abused her sister by using caste indicative words and assaulted her and while she was going to lodge FIR, she was also assaulted by them and rerultantly, she has sustained injuries. It was submitted that the said application has not been decided by the trial court on merits and that without making any discussion on merits, the application was rejected by referring to the provisions of SC/ST Act and SC/ST Rules. Learned counsel submitted that it is well settled position of law that an application under Section 156(3) Cr.P.C. is maintainable before the court of Special Judge (SC/ST Act), when such application discloses commission of offence under the SC/ST Act and thus, the trial court committed illegality by rejecting the application of the appellant without discussing any merit of the matter.

4. Learned A.G.A. has opposed the appeal.

5. I have considered the rival submissions of learned counsel for the parties and perused the record.

6. In the instant matter, perusal of record shows that the appellant has filed an application under Section 156(3) Cr.P.C. against the respondent Nos. 2 to 7, alleging that on 30.04.2022 the said respondents have abused her younger sister by using caste indicative words and they have assaulted one Rajjan Lal and his wife and they sustained injuries. It was further alleged that on 30.04.2022 at about 5:30 P.M., while she was going to register the case, the said respondents have threatened to kill her and they have assaulted her with iron rod and resultantly, she has sustained several injuries and that she was also abused by using caste indicative words. It appears that the court below has referred the provisions of Section 4 and Section 20 of SC/ST Act, as well as Rule 5 of SC/ST Rules and rejected the application of appellant. The perusal of impugned order shows that the court below did not make any discussion on the merits of the matter and the application of the appellant under Section 156(3) Cr.P.C., has not been rejected on merits.

7. It may be stated that recently a Division Bench of this Court vide judgment and order dated 17.10.2022 in Application under Section 482 No. 14443 of 2022; Naresh Kumar Valmiki vs. State of U.P. and others, held that the Exclusive Special Court or the Special Court under the SC/ ST Act 1989 can treat the application under Section 156(3) of Code 1973 as a complaint and proceed with it accordingly. In view of this pronouncement it may be clearly inferred that an application under section 156(3) CrPC, disclosing of commission of offence under the SC/ ST Act would be maintainable before the Exclusive Special Court or the Special Court under the SC/ ST Act 1989.

8. Recently in case of Gyanendra Maurya @ Gullu Vs Union of India [CRIMINAL MISC. WRIT PETITION No. - 7522 of 2022], decided on 02.02.2023, a Division Bench of this Court making reference to section 4 and 5 of the Code 1973 read with Section 20 of the SC/ ST Act 1989, held that in matters of investigation of an offence under the SC/ ST Act 1989, provisions of Section 156(3) of the Code 1973 shall apply. It was held as under:

''32. The second proviso to Section 14(1) of the Act 1989 provides that the Courts so established or specified shall have power to directly take cognizance of the offences under the Act 1989, meaning thereby such Courts can exercise powers taking cognizance of an offence under the Act 1989 which as per the Code of 1973 is a pre-trial stage and is referable to Section 190 thereof. The Code of 1973 is an Act to consolidate and amend the law relating to criminal procedure. Taking cognizance of an offence is dealt with under the said Code in Section 190. As per the said provision the power to take cognizance of any offence vests with the Magistrate. According to Section 193, except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless a case has been committed to it by the Magistrate under this Code. Special Court under Section 14 of the Act 1989 is a Court of Sessions. However, the second proviso to Section 14 (1) vests the power of taking cognizance of an offence under the Act 1989 upon an Exclusive Special Court or a Special Court (which is a Court of Sessions) directly without the case being required to be committed by the Magistrate concerned to it after its cognizance by the latter. Section 190 of Code 1973 has therefore to be applied to Exclusive Special Court/Special Court under the Act 1989 mutatis mutandis, meaning thereby, reference therein to Magistrate will have to be understood as a reference to these Courts under the Act 1989. Reading of Section 190 of Code 1973 conjointly with second proviso to Section 14(1) of the Act 1989 will make it clear that the Exclusive Special Court or the Special Court which is a Court of Sessions is empowered to directly take cognizance of an offence, thus, it exercises powers of a Court of original criminal jurisdiction and the exercise of Page No. 19 its jurisdiction in this regard is not fettered by the provisions of Section 193 of Code 1973. Thus, in view of second proviso to section 14 of the Act 1989 the power exercisable under Section 190 of Code 1973 by the Magistrate are exercisable by the Exclusive Special Court or Special Court as has already been discussed.

33. The fact that there is no specific provision in the Act 1989 empowering the Exclusive Special Court or the Special Court to order lodging of an FIR and to investigate the offence mentioned therein is irrelevant, as the second proviso to Section 14(1) of the Act 1989 leaves no doubt that such Courts exercise original criminal jurisdiction. All offences under the Act 1989 are to be tried by such Courts under the Act 1989 and no other Court has jurisdiction in this regard. They can also take cognizance of an offence directly. Now, such cognizance of an offence can be taken on a private complaint also in view of Section 190 of Code 1973, application of which is not excluded to the proceedings under the Act 1989.

34. We have already held that Section 156(3) of Code 1973 will apply to investigation of an offence under the Act 1989 and as per Section 156(3) of Code 1973 a Magistrate empowered under Section 190 of Code 1973 can order such investigation and as, in view of proviso to Section 14 of the Act 1989 read with Section 190 of Code 1973, it is the Courts established or specified under the Act 1989 which can take cognizance directly in respect of an offence under the Act 1989, therefore, the Magistrate can not and should not take Page No. 20 cognizance of an offence under the Act 1989 as such power when specifically vested with the Special Courts under the Act 1989 should be exercised by the latter as held in Shantaben Burabhai Bhuriya vs. Anand Athabhai Chaudhari 1, therefore, this power under Section 156(3) of Code 1973 has to be exercised by such Exclusive or Special Courts and not the Magistrate.''

9. In view of the law laid down in above referred cases, it is apparent that an application under section 156(3) CrPC, disclosing of commission of offence under the SC/ ST Act, would be maintainable before the Exclusive Special Court or the Special Court under the SC/ ST Act 1989.

10. Coming to the facts of the present case, it may be seen that the learned Court below has rejected application filed by the appellant under section 156(3) CrPC, without considering any merit of the matter. It appears from the impugned order that the learned Special Judge (SC/ ST Act) rejected the application of the appellant by drawing an impression that the provisions of 156(3) CrPC are not applicable to such matters. Hence, the impugned order, being against law, is liable to be set aside. In view of these facts and circumstances, it would be appropriate that matter be remanded back to the Court below to decide the application of the appellant under section 156(3) CrPC in accordance with law.

11. Accordingly, the impugned order is set aside and the matter is remitted back to the Court below to decide the application of the appellant under section 156(3) CrPC in accordance with law.

12. Appeal allowed in above terms.

Order Date :- 22.2.2023

Suraj