Case title: Bijendar Singh Vs State & Anr.
Case no.: CRL. A. 292/2020
Decided on: 08.02.2024
Quorum: Hon’ble Justice V. Kameswar Rao, Hon’ble Justice Saurabh Banerjee
FACTS OF THE CASE:
The current appeal stems from the order of a special judge of the SC/ST court. The complainant filed an application under sections 4 and 3(2) (vi) and (vii) of the SC/ST Act, as well as sections 217 and 218 of the IPC, against an investigation officer who failed to appear in court for the hearing and also for no arresting the accused. The court ordered to file an FIR against the appellant.
The SC/ST Act’s Section 4 discusses the penalties for public servants who fail to perform their duties.
No inquiry or approval is necessary in order to file a First Information Report (FIR) against any individual, according to Section 18A (1) of the SC/ST Act.
Section 15A(11)(i) of the SC/ST Act states that it is the State’s duty and responsibility to specify a scheme for providing a free copy of the chargesheet.
The counsel for the appellant argued that the SC/ST Act’s proviso, which states that a public servant may only be booked based on the recommendation of an administrative inquiry, was disregarded and overlooked by the learned special court. It must be acknowledged that at the time the contested order was issued, the learned special court had not yet requested or received any such report, and the contested order was issued without it.
He argued that the complainant’s grievances in the application are completely baseless and would not constitute a violation of the SC/ST Act. The complainant’s complaint that the appellant did not provide a copy of the chargesheet to him is without merit because the non-supply of the chargesheet does not violate any of the provisions of the SC/ST Act alleged by the complainant.
They contended that the provision in Section 4(2) of the SC/ST Act requiring an administrative inquiry only applies to the stage of framing charges, not the registration of a FIR. Furthermore, Section 4 must be read in conjunction with Section 18A and the overreaching object of the SC/ST Act. As a result, the impugned order of the learned special court cannot be challenged on the basis that it did not follow the procedure outlined in Section 4 because it was for the registration of a FIR rather than the framing of charges.
The counsel further contends that the appellant did not arrest the accused persons in accordance with the law laid down in Arnesh Kumar, but that the appellant failed to consider the recent judgement passed by the Hon’ble Supreme Court in Union of India vs. State of Maharashtra, (2020) 4 SCC 761, which held that where there is no provision for anticipatory bail, arrest must be made. The appellant did not comply with Arnesh Kumar’s requirement to provide reasons for not arresting the accused, which was mandatory.
COURT ANALYSIS AND JUDGMENT:
The court held that, while it is true that the accused has no right to be heard prior to the registration of the FIR, the SC/ST Act is a special act that supersedes the general provisions of Cr.P.C, and the proviso to section 4(2) clearly mandates that charges against public servants be booked only based on the recommendations of the administrative enquiry.
Based on various judgements, the court determined that the appellant, as the IO, has the discretion to arrest or not arrest the accused individuals based on the evidence gathered and the gravity of the offences. Also, once the appellant, who is an IO, files the chargesheet, the Magistrate cannot question the decision not to arrest the accused persons.
The court made it clear that this decision is solely for the purpose of deciding the appeal and will not interfere with the complainant’s case before the learned special court.
The appeal is granted, and any pending applications are resolved in accordance with the terms outlined above.
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Written by – Surya Venkata Sujith