Chandrashekhar Manjhwar vs State Of Chhattisgarh
2021 Latest Caselaw 744 Chatt

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                                                                 NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR

                        WPCR No. 291 of 2021

                   Order Reserved on : 18.06.2021

                   Order Delivered on : 30.06.2021

Chandrashekhar Manjhwar, S/o Shri Ramprasad Manjhwar, Aged
About 31 Years, R/o Village- Kurumauha, Tahsil & District- Korba
(C.G.)
                                                         ---- Petitioner
                                Versus
1.    State of Chhattisgarh, through: Secretary Department of
      Home, Mantralaya, Mahanadi Bhawan, Raipur (C.G.)
2.    Superintendent of Police, District- Korba (C.G.)
3.    Station House Officer, Police Station Ajak, District- Korba
      (C.G.)
4.    Gopal Prasad Mishra, CEO Janpad Panchayat, District- Korba
      (C.G.)
                                                   ---- Respondents

For Petitioner : Mr. Rahil Arun Kochar, Advocate. For State/ res. No. 1 to 3 : Mr. Gurudev I. Sharan, Govt. Adv.

Hon'ble Shri Justice Narendra Kumar Vyas CAV Order

1. The petitioner/complainant has filed this writ petition under Article 226 of the Constitution of India against illegality and irregularity committed by respondent authorities as he has already submitted complaint against respondent No. 4 for registration of cognizable offence under provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the Act, 1989") for committing offence of abusing by his caste, but no action has been taken on the complaint.

2. The brief facts, as projected by the petitioner, are that the petitioner has made a complaint on 09.03.2021 against respondent No. 4 before Station House Officer, Police Station

SC/ST, District- Korba (C.G.) that he was insulted, humiliated and abused by respondent No. 4 by his caste. Respondent No. 4 is a habitual offender as he used filthy languages on the basis of caste with malicious intention to other persons belonging to Scheduled Caste community, therefore, prayed for registration of FIR against respondent No. 4 under the Act, 1989.

3. The petitioner has submitted another complaint to Superintendent of Police, Korba (C.G.), but no action has been taken on that complaint, therefore, he has filed the present writ petition before this Court and prayed for following reliefs:-

"10.1 That this Hon'ble Court may kindly be pleased to issue writ in mandamus directing respondent State authorities to enquire, the written complaint dated 09.03.2021 Annexure P/1 & Annexure P/2 and to proceed thereafter. 10.2 That this Hon'ble Court may kindly be pleased to direct the respondents to record statement of Vishnu Adile, Chabilal and Sahil Das.

10.3 That this Hon'ble may be further pleased to pass any other consequential and other orders/ writs which this Hon'ble court deems just and proper in the facts and circumstances of the case."

4. From perusal of reliefs sought, it is quite clear that the petitioner wants that on the basis of complaint, FIR should be registered against respondent No. 4- Gopal Prasad Mishra under the Act, 1989.

5. The State has filed return on 07.06.2021 wherein, they have indicated that the enquiry has been initiated against respondent No. 4 in pursuance of the complaint made by the petitioner. Preliminary enquiry was conducted after recording of evidence and material on record. Enquiry Officer, I/c Police Station- Ajak, District- Korba (C.G.) has given finding, which reads as under:-

" vkosnd ds }kjk fn;s x;s f'kdk;r i= dh takp esa vkosnd pUnz'ks[kj ea>okj ds }kjk tks xokg is'k fd;k x;k gS] og

vkosnd pUnz'ks[kj ea>okj ls iwoZ ifjfpr] fe= o fj'rsnkj gS ,oa Lora= xokg ugh gksdj vkosnd ls fgrc) gSA vukosnd th-ds- feJk ds }kjk vkosnd pUnz'ks[kj ea>okj ds fo:) tuin iapk;r dksjck esa iz/kkuea=h vkokl ;kstuk ¼xzkeh.k½ varxZr foRrh; vfu;ferrk dh Lo;a ds }kjk f'kdk;r takp dh tk jgh gS ftldk nLrkost vukosnd ds }kjk f'kdk;r takp ds nkSjku is'k fd;k x;kA mDr takp lca/kh nLrkost ds voyksdu ij vkosnd ds fo:) gks jgs takp ls {kqC/k gksdj f'kdk;r djuk ,oa vkosnd] vukosnd rFkk xokgksa ds dFku] lhlhVhOgh QqVst dk vkWfM;ks&fofM;ks ds voyksdu ls f'kdk;r vizekf.kr ik;k x;kA "

6. Learned counsel for the petitioner submits that the preliminary enquiry conducted by the respondent, is not permissible as per the judgment rendered by the Hon'ble Supreme Court in Union of India Vs. State of Maharashtra & others1, which reads as under:-

"68. The direction has also been issued that the D.S.P. should conduct a preliminary inquiry to find out whether allegations make out a case under the Atrocities Act, and that the allegations are not frivolous or motivated. In case a cognisable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made as held in Lalita Kumari v. State of U.P. [(2014) 2 SCC 1] by a Constitution Bench. There is no such provision in the Code of Criminal Procedure for preliminary inquiry or under the SC/ST Act, as such direction is impermissible. Moreover, it is ordered to be conducted by the person of the rank of D.S.P.

The number of D.S.P. as per stand of Union of India required for such an exercise of preliminary inquiry is not available. The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered in such a case how a final report has to be filed in the Court. Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis-a-vis the complaints lodged by members of upper caste, for later no such preliminary investigation is necessary, in that view of matter it should not be necessary to hold

1 (2020) 4 SCC 761

preliminary inquiry for registering an offence under the Atrocities Act of 1989. "

7. From the above law laid down by the Hon'ble Supreme Court, it is quite vivid that before registration of FIR under the Act, 1989, no preliminary enqiury is required, therefore, initiation of preliminary enquiry conducted by the respondent (Annexure R/1) is illegal and bad in law, which is liable to be quashed, accordingly, it is quashed.

8. From perusal of relief sought, it is quite clear that the petitioner through his complaint dated 09.03.2021, wants to register the offence against respondent No. 4, for which the petitioner has remedy of filing a complaint before the concerned Judicial Magistrate First Class under Section 200 of the Cr.P.C. The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State of Uttar Pradesh & others2, has examined the issue holding that the petitioner has remedy of filing of complaint before the concerned Judicial Magistrate First Class under Section 200 of the Cr.P.C. The Supreme Court has again considered and decided the issue in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage3 and M. Subramaniam & another Vs. S. Janaki & another4.

9. Considering the facts and materials on record and in the light of the law laid down by Hon'ble the Supreme Court in the above cited judgments, the present writ petition filed under Article 226 of the Constitution of India, is disposed of with liberty to the petitioner to file a complaint under Section 200 of the Cr.P.C. before the court of Judicial Magistrate First Class having jurisdiction over the place of offence and in-turn Magistrate shall follow the procedure prescribed under the provisions of the Cr.P.C.

10. It is made clear that this Court has not expressed any opinion on merits of the case whether the complaint discloses any criminal offence or not.

2    (2008) 2 SCC 409
3    (2016) 6 SCC 277
4    (2020) 16 SCC 728

11. In view of the above, the instant writ petition is allowed with liberty granted in favour of the petitioner to file complaint under Section 200 of the Cr.P.C.

Sd/-

(Narendra Kumar Vyas) Judge

Arun