Thursday, 5 November 2020

Chhattisgarh HC: Special Court Under SC-ST (Prevention Of Atrocities) Act Has Power To Direct Registration Of FIR U/s 156(3) CrPC

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.”  {Para 30}

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.

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

1 (2014) 2 SCC 1


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

(1) & (3) of Section 154

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,

2 2016(4) CGLJ 10


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

3 (2015) 6 SCC 287

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

4 (2000) 2 SCC 504

5 (2004) 1 SCC 215

6 (2004) 4 SCC 231


Cantonment7, threeJudges

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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