The Lucknow Bench of the Allahabad High Court has said it is not mandatory to file a chargesheet after the FIR is lodged in every case under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
The Division Bench of Justice Rajan Roy and Justice Sanjay Kumar Pachori heard the petition filed by Gyanendra Maurya @ Gullu.
The petitioner has sought following reliefs in the petition filed under Article 226 of the Constitution of India:
“(i) Issue a writ order or direction declaring the Section 4(2)(e) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and Rule 7(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Rules) 1995, ultra- vires to Part III of the Constitution of India upto the extent they both necessarily directs for filing of ‘charge sheet’.
(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 02.03.2022, passed by the Exclusive Special Court, Pratapgarh, with all consequential proceedings, or,
(iii) issue a writ, order or direction commanding the opposite parties no 2 and 3 to delete the Section 376-D and 506 IPC from the FIR No 100 of 2022 registered at P.S Maheshganj, District Pratapgarh, under Sections 376- D, 506 IPC and 3(2)(v) & 3(2)(va) of the Act 1989.”
The Petitioner has sought declaration that Section 4(2)(e) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and Rule 7(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Rules) 1995 be declared ultra vires Part III of the Constitution of India to the extent the said provisions necessarily direct for filing of charge sheet.
The contention of the counsel for the petitioner was that the language used in the aforesaid two provisions leaves no scope for the Investigating Officer to file a final report in a case where no offence is made out under the Act 1989, meaning thereby he has necessarily and mandatorily to file a chargesheet in every case in which an FIR is lodged alleging an offence under the Act.
He further submitted that the word used in the aforesaid provisions is ‘file charge-sheet’ and not ‘file a police report’. Under Section 173 of the Code of Criminal Procedure, 1973, the term used is police report which may be in the form of a charge-sheet or a final report, the former to be filed in a case where the offence is made out based on the evidence collected and the latter in case where the offence is not made out, but, distinct from the language used in Section 173 of Code 1973, the provision contained in the Act 1989 and the Rules of 1995 mention the word ‘charge-sheet’.
He also submitted that this makes the provision unreasonable and violates Articles 14 and 21 of the Constitution of India.
The Court observed the apprehension in the mind of the petitioner seems to have arisen on account of use of the word ‘charge-sheet’ instead of ‘police report’ in the above quoted provisions. The provisions have to be read and understood in a reasonable manner. What the aforesaid two provisions mean is that wherever the offence is made out as having been committed under the Act 1989 based on evidence collected during investigation, a charge-sheet is required to be filed as is mentioned therein.If the suggestion or argument of the counsel for the petitioner is accepted that even if no offence is made out, the charge-sheet has necessarily to be filed or in every case where an FIR alleging the offence under the Act 1989 is lodged, the Investigating Officer is bound to file a charge-sheet with the Special Court or the Exclusive Special Court, it would be apparently unreasonable, absurd and hit by Articles 14 and 21 of the Constitution of India. Statutory provisions cannot be read, understood and applied in an unreasonable manner so as to lead to absurdity and/or to violate fundamental rights of a citizen. Our understanding and interpretation of this provision as mentioned hereinabove is the correct understanding of law and the argument of the counsel for the petitioner is misconceived.
In view of the above, it is held that the aforesaid provisions do not necessarily mandate the Investigating Officer to file a charge-sheet in each and every case where an FIR has been lodged alleging commission of offence under the Act 1989, but it only enjoins upon him to file such charge-sheet where, based on evidence collected during investigation, the offence is made out. Relief No 1 is accordingly rejected.
The Court noted the petitioner has challenged the order dated 02.03.2022 passed by the Special Court, Pratapgarh. The order dated 02.03.2022 has been passed by a Court of Sessions which has been specified as Special Judge (SC/ST Act), Pratapgarh.
The contention was that the Exclusive Special Court/Special Court, Pratapgarh does not have power to order lodging of FIR and investigation in respect thereof as is prescribed under Section 156 (3) of Code 1973 In this context reliance was placed upon the definition “Exclusive Special Court” contained in Section 2(bd) which has been been defined to mean the Exclusive Special Court established under sub-section (1) of Section 14 of the Act 1989 to exclusively try the offences under the Act 1989.
It was submitted that such a Court is established to try the offences under the Act 1989. Trial commences only after charge is framed and not prior to it. The process under Section 156(3) of Code 1973 is a pre-trial stage, therefore, in view of aforesaid provision the Exclusive Special Court does not have the power prescribed under Section 156(3) of Code 1973. The term Special Court is defined under Section 2(d) of the Act 1989 to mean a Court of Sessions specified as a Special Court in Section 14.
As per the proviso to Section 14(1) Special Courts are also specified to try the offences under the Act 1989.
Counsel for the petitioner also submitted that while the power to take cognizance of a case directly has been conferred upon the Exclusive Special Court/Special Court in the second proviso to Section 14(1), no such power as is prescribed in Section 156(3) of Code 1973 to order lodging of FIR and investigation has been conferred upon the said Courts.
Counsel for the petitioner invited the court’s attention to Rule 5 of the Rules of 1995 to contend that Rule 5(3) of the Rules of 1995 is pari materia to Section 154(3) of Code 1973 and it provides a remedy/ recourse to aggrieved person before the concerned official if FIR is not lodged by the officials of the concerned Police Station.
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, the Court further observed.
The order passed by the Special Court dated 02.03.2022 is not without jurisdiction. The Court opined that the relief is not liable to be granted.
As regards Relief No 3, the Court found that the offences under the Act 1989 are such which are referred to as atrocity in Section 2(a) which has been defined to mean an offence punishable under Section 3.
Now, in Section 3 of the Act 1989 various offences are mentioned. Section 3(2)(v) provides that whoever not being a Member of the Scheduled Caste or Scheduled Tribe commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. Now, the offence of gang-rape, as is alleged in the FIR, is referable to Section 376-D IPC and carries a sentence which shall not be less than 12 years, which may extend to life, which shall mean imprisonment for the remainder of that person’s natural life and with fine, therefore, clearly an offence of gang-rape is referable to Section 3(2)(v) of the Act 1989. Section 506 IPC, as is alleged in the FIR, is referable to schedule read with 3(2)(v) of the Act 1989, therefore, both these offences are referable to the Act 1989 and also amenable to the jurisdiction of the Exclusive Special Courts or the Special Courts under the said Act.
Section 3(2)(va) provides for punishment of an offence specified in the schedule to the Act 1989 subject to contingencies mentioned therein. The punishment shall be as specified in the Indian Penal Code for such offences and shall also be liable to fine. Thus, it is incorrect to say that the petitioner would be penalised under two provisions. It would not be so.
In any case grounds (gg) and (hh) in the writ petition can be raised/seen at the appropriate stage before the Court concerned and as of now it cannot be said that the petitioner would be punished for the same offence under two provisions.
In view of the above discussion, the Court sees no reason to grant Relief No 3.
Accordingly, the Court dismissed the petition.