Allahabad High Court
Bitti Devi vs State Of U.P. And 2 Others on 11 May, 2023
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:101638
Court No. - 81
Case :- CRIMINAL APPEAL No. - 482 of 2023
Appellant :- Bitti Devi
Respondent :- State Of U.P. And 2 Others
Counsel for Appellant :- Piyush Shukla,Pratyush Shukla
Counsel for Respondent :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Shri Sheetal Prasad Chakravarty, Advocate has filed his 'vakalatnama' on behalf of the opposite party no.2, the same is taken on record.
With regard to the opposite party no.3 namely Ashok Kumar Dwivedi, as per the report of the Chief Metropolitan Magistrate, Kanpur Nagar of date 02.05.2023, service is sufficient. However, he (opposite party no.3) is not represented.
Heard Shri Pratyush Shukla, learned counsel for the appellant, Shri Sheetal Prasad Chakravarty, learned counsel appearing for opposite party no.2 as well as learned A.G.A. for the State and perused the record.
The instant appeal under Section 14-A(1) of the SC/ST (Prevention of Atrocities) Act, 1989 has been filed by the appellant- Bitti Devi with the prayer to allow the present criminal appeal and set-aside the judgment and order dated 09.12.2022 passed by learned Special Judge (SC/ST) Act, Kanpur Nagar in Criminal Misc. Case No. 1823 of 2022 (Bitti Devi vs. Mahendra Singh Yadav and another), under Section 156(3) Cr.P.C., Police Station Panki, District Kanpur Nagar.
Learned counsel for the appellant while relying on the judgment passed by the Division Bench of this Court in 'Gyanendra Maurya @ Gullu vs. Union of India' reported in MANU/UP/0238/2023, submits that the Special Court has committed manifest illegality in rejecting the application moved by the appellant under Section 156(3) Cr.P.C. by misinterpreting Section 20 of the SC/ST Act and the Rules of the year 1995 in order to arrive at a conclusion that application moved under Section 156(3) Cr.P.C. is not cognizable/maintainable before the Special Court, as constituted under the SC/ST Act.
Learned counsel appearing for opposite party no.2, however, is having reservation with regard to the submissions made on behalf of the appellant and submits that there is no illegality in the impugned order.
Learned A.G.A. on the other hand submits that he doesn't have to say anything as the matter is purely of legal nature, which has been set at rest by the two Division Benches of this Court.
Having heard learned counsel for the parties and having perused the record, it is transpired that an application under Section 156(3) Cr.P.C. was moved by the instant appellant before the Special Court requesting for investigation of the allegations mentioned therein and by passing the impugned order of date 09.12.2022 the same has been dismissed only on the ground of maintainability, as the Special Court while discussing the Section 18-A, 20 of the SC/ST Act and various rules framed with regard to the SC/ST Rules, 1995 found that the application under Section 156(3) Cr.P.C. is not maintainable before the Special Court.
Having regard to the law laid down by the Division Bench of this Court in 'Gyanendra Maurya @ Gullu (supra)', the conclusions drawn by the Special Judge doesn't appear to be in accordance with law.
The relevant paragraphs of the order of the Division Bench of this Court in 'Gyanendra Maurya @ Gullu' (supra) is reproduced as under for guidance of the Special Court:-
"26. The question is what happens after non-compliance of Rule 5(3) of the Rules of 1995 i.e., if the Officer-in-Charge/SHO of PS concerned refuses to lodge the FIR and an application is submitted before the higher Officer that is Superintendent of Police, but he also does not take any action? of what use would be the proceedings under Section 4 of the Act 1989 which empowers the Exclusive Special Court or the Special Court to take cognizance of dereliction of duty on the part of the said Officers that is the Officer-in-Charge/SHO and Superintendent of Police in not lodging the FIR, if there is no power with the Exclusive Special Court or the Special Court to order lodging of such FIR? There is nothing in the Act 1989 or the Rules made thereunder to exclude the applicability of Section 156(3) of Code 1973 to investigation of offences under the Act 1989.
28. In view of the above discussions in the context of Sections 4 and 5 of the Code 1973 read with Section 20 of the Act 1989, in matters of investigation of an offence under the Act 1989, Section 156(3) of the Code 1973 shall apply.
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 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, therefore, this power under Section 156(3) of Code 1973 has to be exercised by such Exclusive or Special Courts and not the Magistrate.
36. Even at the cost of repetition, there is no exclusion of the powers prescribed under Section 156(3) of Code 1973 for such Courts established under the 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 the language used in Section 156 of Code 1973 they can order lodging of FIR and investigation into an offence under the Act 1989 in exercise of powers under Section 156(3) of Code 1973.
37. The word Magistrate under Section 156(3) of Code 1973 does not mean that the Exclusive Special Court or the Special Court which is a Court of Sessions will not have the power under the said provision, as, in the absence of any specific exclusion, the provision will apply mutatis mutandis.
38. In fact, exercise of such powers by the Exclusive Special Court or the Special Court is also necessary so as to achieve the object of the Act 1989 and ensure speedy justice to the victim as these are Courts exclusively established or specified to deal with offences under the Act 1989.
39. A Full Bench of this Court has recently held vide judgment and order dated 17.10.2022 in a bunch of Applications under Section 482 of Code 1973 leading case being Application under Section 482 No. 14443 of 2022; Naresh Kumar Valmiki vs. State of U.P. and others that the Exclusive Special Court or the Special Court under the Act 1989 can treat the application under Section 156(3) of Code 1973 as a complaint and proceed with it accordingly."
The legal position, as placed above is sufficient to demonstrate that an application moved under Section 156(3) Cr.P.C. is maintainable before the Special Court.
Thus, the Special Court appears to have committed manifest illegality in rejecting the application moved by the appellant under Section 156(3) Cr.P.C. and, thus, the impugned order cannot stand the test of law and keeping in view the above legal position, the same is set-aside. Resultantly, the appeal filed by the appellant is thus allowed.
The matter is remanded back to the Special Court for passing an order afresh, after providing an opportunity of being heard to the appellant/complainant.
It is clarified that this Court has not made any observation with regard to the contents of the application moved under Section 156(3) Cr.P.C. or disclosed any opinion on merits and the Special Court shall be free to arrive at its own conclusions without being guided by any observation of this Court.
Order Date :- 11.5.2023
Praveen
