# Gyanendra Maurya @ Gullu v. Union of India & Ors

- **Citation:** (2023) 2 ILRA 873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-02
- **Case number:** Criminal Misc. Writ Petition No. 7522 of 2022
- **Bench:** Rajan Roy, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyanendra-maurya-gullu-v-union-of-india-ors-49751
- **Pages:** 13

## Headnote

(A) Criminal Law - Constitution of India,
1950 - Article 226, - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Sections 3(2)(v),
4(2)(e),
-
Scheduled
Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Rules, 1995 - Rules 5, 7(2), -
Indian Penal Code, 1860 - Sections 376-D
& 506, - Criminal Procedure Code, 1973 -
Sections 4, 156, 156(3) & 190: -Writ
Petition - for declaring the Section 4(2)(e) of
SC/ST Act, read with Rule 7(2) of SC/ST Rules
874 INDIAN LAW REPORTS ALLAHABAD SERIES
ultra-vires - statutory provision for filing of
charge-sheet - 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 - Provisions do not necessarily
mandate Investigating Officer to file a chargesheet in each and every case where an FIR has
been lodged alleging commission of offence
under Act 1989, but it only enjoins upon him to
file
such
charge-sheet
where,
based
on
evidence collected during investigation, offence
is made out - accordingly relief for declaring
ultra-vires is rejected. (Para - 6, 7)

(B) Criminal Law - Constitution of India,
1950 - Article 226, - Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Sections 3(2)(v)
& 4(2)(e), - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Rules, 1995 - Rules 5, 7(2), -
Indian Penal Code, 1860 - Sections 376D & 506, - Criminal Procedure Code,
1973 - Sections 4, 156, 156(3) & 190 -
writ petition - challenging the power of
Exclusive Special Court, specified under SC/ST
Act, ordered to lodging an FIR and
investigation in respect thereof as is prescribed
under section 156(3) of Cr.P.C. - there is no
exclusion of powers prescribed under Section
156(3)
of
Code
1973
for
such
Courts
established under 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 language used in
Section 156 of Code 1973 they can order
lodging of FIR and investigation into an offence
under Act 1989 in exercise of powers under
Section 156(3) of Code 1973 - certain
provisions of Cr.P.C. have specifically been
excluded from their application to proceedings
under the SC/ST Act - Authority to lodge an
FIR
is
distinct
from
authority
to
take
cognizance for dereliction of duty under
Section 4 of Act 1989 - Exclusive Special Court
or Special Court exercise original criminal
jurisdiction - All offences under Act 1989 are
to be tried by such Courts under Act 1989 and
no other Court has jurisdiction in this regard -
they can also take cognizance of an offence
directly - hence impugned order is not without
jurisdiction - relief claimed in writ petition is
not liable to be granted.
 (Para 23, 25, 33, 34, 36, 40)

(C) Criminal Law - Constitution of India,
1950 - Article 226, - Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 - Sections 3(2)(v) & 4(2)(e), -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Rules, 1995 -
Rules 5, 7(2), - Indian Penal Code, 1860 -
Sections 376-D & 506 - Criminal Procedure
Code, 1973 - Sections 4, 156, 156(3) & 190
-writ petition - challenging the impugned order on
the ground the petitioner would be punished for
the same offence under two provisions - Offence
of gang-rape, as is alleged in 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
remainder of that person's natural life and with
fine, clearly an offence of gang-rape is referable to
Section 3(2)(v) of Act 1989 - Section 506 IPC, as is
alleged in FIR, is referable to schedule read with
3(2)(v) of Act 1989 - hence, both these offences
are referable to Act 1989 and also amenable to
jurisdiction of Exclusive Special Courts or Special
Courts under said Act - punishment shall be as
specifi

## Text

_Characters 0–39,817 of 44,728. This is a partial read: ask again with offset=39817 for what follows._

2 All. Gyanendra Maurya @ Gullu Vs. Union of India & Ors.
873
Hon'ble
Supreme
Court,
has
been
mentioned in paragraph 68 of the report
which is extracted herein below:-

"(ii) Article 21 of the Constitution in
its broad perspective seeks to protect the
persons of their lives and personal
liberties
except
according
to
the
procedure established by law. The said
article in its broad application not only
takes within its fold enforcement of the
rights of an accused but also the rights of
the victim. The State has a duty to
enforce the human rights of a citizen
providing
for
fair
and
impartial
investigation against any person accused
of commission of a cognizable offence,
which may include its own officers. In
certain situations even a witness to the
crime may seek for and shall be granted
protection by the State."

46. Thus, the question is not as to
whether an accused or victim has any right
to seek transfer of a reported crime; rather
the point is that the reported crime should
be investigated in the most fair and
impartial manner.

47. In this regard, however, it is also
to be noticed that the petitioner has not
been able to demonstrate as to what
prejudice will be caused to him in case the
F.I.R. is investigated by the CBI. Except for
stating that the F.I.R. reveals allegations
against the accused -Vinay Pathak that he
had told the petitioner that he had to give
money in bribe to his superiors, nothing has
been brought on record to substantiate that
the transfer of the F.I.R. in this case for
investigation to the CBI has been made to
derail the investigation. The reason for
transfer, as discussed above, are available
in the reference made by the State
Government along with its consent to the
Central Government for making an order
extending the powers and jurisdictions of
CBI to investigate the F.I.R. in this case.

48. For the discussion made and
reasons given above, we are unable to
persuade ourselves to subscribe to the
arguments made by the learned counsel for
the petitioner.

49. Resultantly, the writ petition fails
which is hereby dismissed.

50. There will, however, be no order
as to costs.
----------
(2023) 2 ILRA 873
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.02.2023

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Misc. Writ Petition No. 7522 of 2022

Gyanendra Maurya @ Gullu ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Gyanendra Singh

Counsel for the Respondents:
A.S.G.I.

(A) Criminal Law - Constitution of India,
1950 - Article 226, - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Sections 3(2)(v),
4(2)(e),
-
Scheduled
Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Rules, 1995 - Rules 5, 7(2), -
Indian Penal Code, 1860 - Sections 376-D
& 506, - Criminal Procedure Code, 1973 -
Sections 4, 156, 156(3) & 190: -Writ
Petition - for declaring the Section 4(2)(e) of
SC/ST Act, read with Rule 7(2) of SC/ST Rules
874 INDIAN LAW REPORTS ALLAHABAD SERIES
ultra-vires - statutory provision for filing of
charge-sheet - 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 - Provisions do not necessarily
mandate Investigating Officer to file a chargesheet in each and every case where an FIR has
been lodged alleging commission of offence
under Act 1989, but it only enjoins upon him to
file
such
charge-sheet
where,
based
on
evidence collected during investigation, offence
is made out - accordingly relief for declaring
ultra-vires is rejected. (Para - 6, 7)

(B) Criminal Law - Constitution of India,
1950 - Article 226, - Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Sections 3(2)(v)
& 4(2)(e), - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Rules, 1995 - Rules 5, 7(2), -
Indian Penal Code, 1860 - Sections 376D & 506, - Criminal Procedure Code,
1973 - Sections 4, 156, 156(3) & 190 -
writ petition - challenging the power of
Exclusive Special Court, specified under SC/ST
Act, ordered to lodging an FIR and
investigation in respect thereof as is prescribed
under section 156(3) of Cr.P.C. - there is no
exclusion of powers prescribed under Section
156(3)
of
Code
1973
for
such
Courts
established under 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 language used in
Section 156 of Code 1973 they can order
lodging of FIR and investigation into an offence
under Act 1989 in exercise of powers under
Section 156(3) of Code 1973 - certain
provisions of Cr.P.C. have specifically been
excluded from their application to proceedings
under the SC/ST Act - Authority to lodge an
FIR
is
distinct
from
authority
to
take
cognizance for dereliction of duty under
Section 4 of Act 1989 - Exclusive Special Court
or Special Court exercise original criminal
jurisdiction - All offences under Act 1989 are
to be tried by such Courts under Act 1989 and
no other Court has jurisdiction in this regard -
they can also take cognizance of an offence
directly - hence impugned order is not without
jurisdiction - relief claimed in writ petition is
not liable to be granted.
 (Para 23, 25, 33, 34, 36, 40)

(C) Criminal Law - Constitution of India,
1950 - Article 226, - Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 - Sections 3(2)(v) & 4(2)(e), -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Rules, 1995 -
Rules 5, 7(2), - Indian Penal Code, 1860 -
Sections 376-D & 506 - Criminal Procedure
Code, 1973 - Sections 4, 156, 156(3) & 190
-writ petition - challenging the impugned order on
the ground the petitioner would be punished for
the same offence under two provisions - Offence
of gang-rape, as is alleged in 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
remainder of that person's natural life and with
fine, clearly an offence of gang-rape is referable to
Section 3(2)(v) of Act 1989 - Section 506 IPC, as is
alleged in FIR, is referable to schedule read with
3(2)(v) of Act 1989 - hence, both these offences
are referable to Act 1989 and also amenable to
jurisdiction of Exclusive Special Courts or Special
Courts under said Act - punishment shall be as
specified in the IPC for such offences and shall also
be liable to fine - Thus, plea of penalised under
two provisions is incorrect - writ petition is
dismissed.(Para - 41, 42, 43)

Writ Petition Allowed. (E-11)

List of Cases cited: -

1. Shantaben Burabhai Bhuriya Vs Anand
Athabhai Chaudhari (2021 SSC Online SC 974)

2. Ramveer Upadhyay & anr. Vs St. of UP & anr.
(2021 SC Online SC 484).

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. The petitioner has sought following
reliefs in this 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
2 All. Gyanendra Maurya @ Gullu Vs. Union of India & Ors.
875
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
(contained as annexure no. 3 to the writ
petition), 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
I.P.C. 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."

3. Vide Relief No. 1, he has sought a
declaration that Section 4(2)(e) of the
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act 1989 (for
short 'the Act 1989) and Rule 7(2) of the
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities Rules) 1995 (for
short 'the Rules of 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.

4. In order to consider this issue and
relief prayed for, we need refer to Section 4
including sub-Section (2)(e) of the Act
1989 which reads as under:

''4. Punishment for neglect of duties.
(1) Whoever, being a public servant but not
being a member of a Scheduled Caste or a
Scheduled Tribe, wilfully neglects his duties
required to be performed by him under this
Act and the rules made thereunder, shall be
punishable with imprisonment for a term
which shall not be less than six months but
which may extend to one year.

(2) The duties of public servant
referred to in sub-section (1) shall include-
(a) to read out to an informant the
information given orally, and reduced to
writing by the officer in charge of the police
station, before taking the signature of the
informant;

(b) to register a complaint or a First
Information Report under this Act and other
relevant provisions and to register it under
appropriate sections of this Act;

(c) to furnish a copy of the information
so recorded forthwith to the informant;

(d) to record the statement of the victims
or witnesses;

(e) to conduct the investigation and file
charge sheet in the Special Court or the
Exclusive Special Court within a period of
sixty days, and to explain the delay if any, in
writing; to correctly prepare, frame and
translate any document or electronic record;

(g) to perform any other duty specified
in this Act or the rules made thereunder:

Provided that the charges in this regard
against the public servant shall be booked on
the recommendation of an administrative
enquiry.

(3) The cognizance in respect of any
dereliction of duty referred to in sub-section
(2) by a public servant shall be taken by the
Special Court or the Exclusive Special Court
and shall give direction for penal proceedings
against such public servant."

Rule 7 of the Rules of 1995 including
sub-Rule (2) thereof, vires of which has
been challenged, reads as under:

"7. INVESTIGATING OFFICER.-
(1) An offence committed under the Act
876 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be investigated by a police officer not
below the rank of a Deputy Superintendent
of Police. The investigating officer shall be
appointed
by
the
State
Government/Director
General
of
Police/Superintendent
of
Police
after
taking into account his past experience,
sense of ability and justice to perceive the
implications of the case and investigate it
along with right lines within the shortest
possible time.

(2)
The
investigating
officer
so
appointed
under
sub-rule
(1)
shall
complete the investigation on top priority,
submit the report to the Superintendent of
Police, who in turn will immediately
forward the report to the Director General
of Police or the Commissioner of Police of
the State Government, and the Officer
incharge of the concerned police station
shall file a charge sheet in the Special
Court or the Special Court within a period
of sixty days (the period is inclusive of
investigation and filing of charge-sheet).

(2-A) The delay, if any, in investigation
or filing of charge-sheet in accordance with
sub-rule (2) shall be explained in writing
by the investigating officer.

(3) The Secretary, Home Department
and the Secretary, Scheduled Castes and
Scheduled Tribes Development Department
(the name of the Department may vary from
State to State) of the State Government or
Union Territory Administration, Director of
Prosecution, the officer in-charge of
Prosecution and the Director General of
Police or the Commissioner of Police
incharge of the concerned State or Union
Territory shall review by the end of every
quarter the position of all investigations
done by the investigating officer."

5. In this context, the contention of
learned 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
charge-sheet in every case in which an FIR
is lodged alleging an offence under the Act.
In this context, 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 (hereinafter
referred as 'Code 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
submitted that this makes the provision
unreasonable and hit by Articles 14 and 21
of the Constitution of India.

6. 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 learned
counsel for the petitioner is accepted that
even if no offence is made out, the chargesheet 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
2 All. Gyanendra Maurya @ Gullu Vs. Union of India & Ors.
877
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 learned counsel for the
petitioner is misconceived.

7. 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.

8. Vide Relief No. 2, petitioner has
challenged the order dated 02.03.2022
passed by the Special Court, Pratapgarh.

9. The impugned order dated
02.03.2022 has been passed by a Court of
Sessions which has been specified as
Special Judge (SC/ST Act), Pratapgarh.

10. 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
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.

11. Section 14 of the Act 1989 reads
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.

(2) It shall be the duty of the State
Government to establish adequate number
of Courts to ensure that cases under this
878 INDIAN LAW REPORTS ALLAHABAD SERIES
Act 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 dayto-day 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 Act, the trial shall, as
far as possible, be completed within a
period of two months from the date of filing
of the charge sheet."

12. The submission based on the
aforesaid
provisions
was,
as
already
mentioned earlier, such Courts are only
empowered to try the offences under the
Act 1989 that is to hold trial in respect
thereof, but not to exercise any other
power.

13. Learned 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. In this context, learned
counsel for the petitioner invited our 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.

14. Rule 5 of the Rules of 1995 reads
as under:

"5. INFORMATION TO POLICE
OFFICER IN-CHARGE OF A POLICE
STATION:-(1) Every information relating
to the commission of an offence under the
Act, 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 persons giving it, and the
substance thereof shall be entered in a book
to be maintained by that police station.

(2) A copy of the information as so
recorded under sub-rule (1) above shall be
given forthwith, free of cost, to the
informant.

(3) Any person aggrieved by a refusal
on the part of an officer incharge of a
police station to record the information
referred to in sub-rule (1) may send the
substance of such information, in writing
and by post, to the Superintendent of Police
concerned who after investigation either by
himself or by a police officer not below the
rank of Deputy Superintendent of Police,
shall make an order in writing to the officer
in-charge of the concerned police station to
enter the substance of that information to
be entered in the book to be maintained by
that police station."

15. He further invited our attention to
Section 4 of the Act 1989 pertaining to
punishment for neglect of duties under
which if the duties mentioned therein,
which includes registration of a complaint
or an FIR under the Act 1989 and other
relevant provisions, are not performed by
the concerned official, cognizance in
respect of such dereliction of duty referred
to in sub-Section 2 of Section 4 of the Act
1989 by a public servant shall be taken by
the Special Court or the Exclusive Special
2 All. Gyanendra Maurya @ Gullu Vs. Union of India & Ors.
879
Court and it shall give direction for penal
proceedings against such public servant.

16. He submitted that though power
of taking cognizance of such dereliction of
duty and also ordering penal proceedings
have been conferred upon the Special
Court, but no provision has been made
empowering them to order lodging of an
FIR and investigation in terms of Section
156(3) of Code 1973. The Legislator in its
wisdom has stopped short of saying so and
has stopped at the stage of Section 154(3)
of Code 1973 by incorporating a similar
provision in rule 5 of the Rules of 1995, but
has not incorporated any such provision
analogous to Section 156(3) of Code 1973
in the Act 1989 or the Rules of 1995. Based
on it, he submitted that this itself makes the
intention of the Legislator and the Rule
making authority very clear that no such
power has been vested with the Exclusive
Special Court or the Special Court.

17. In this context, he also invited
attention of the Court to Section 18A of the
Act 1989 which has been inserted by Act
No. 27 of 2018 w.e.f. 20.08.2018 by which
preliminary inquiry is not required for
registration of First Information Report
against any person nor approval for arrest is
required. The contention of learned counsel
for the petitioner was that this provision
makes registration of FIR mandatory
without any preliminary inquiry.

18. It was also the contention of
learned counsel for the petitioner that the
word used in Section 156 is Magistrate,
which, the Exclusive Special Court or the
Special Court is not. In the case at hand, the
order has been passed by a Court of
Sessions which is referred as Special Court
and not by the Magistrate.

19. The argument of learned counsel
for the petitioner as noticed earlier
appeared quite attractive at first blush,
however, we find that as far as the
definition of Exclusive Special Court and
Special Court under the Act 1989 read with
Section 14 of the said Act are concerned,
no doubt on a reading of it the said Courts
had been established for trying the offences
committed under the Act 1989, but, by the
Act No. 1 of 2016, amendments have been
made in Section 14, by which, inter alia, a
second proviso to Section 14(1) has been
added. Courts so established or so specified
under Section 14(1) have been given the
power to directly take cognizance of the
offence under the Act 1989. Taking of
cognizance is a pre-trial stage, therefore,
the contention that such Courts are only
empowered to try cases is incorrect.

20. Now, we may consider the
applicability
of
Code
of
Criminal
Procedure before the Exclusive/Special
Court under the Act 1989.

21. In the Act 1989 or the Rules of
1995, the procedure to be followed by these
Courts under the Act 1989 has not been
prescribed. Such procedure has been
prescribed in the Code 1973 which contains
the general law relating to criminal
procedure.

22. In this context it is relevant to
refer to Section 4 of the Code 1973 which
reads as under:

"4. Trial of offences under the Indian
Penal Code and other laws. (1) All offences
under the Indian Penal Code (45 of 1860)
shall be investigated, inquired into, tried, and
otherwise dealt with according to the
provisions hereinafter contained.
880 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) All offences under any other law
shall be investigated, inquired into, tried,
and otherwise dealt with according to the
same provisions, but subject to any
enactment for the time being in force
regulating the manner or place of
investigating, inquiring into, trying or
otherwise dealing with such offences."

Section 5 of the Code 1973 reads as
under:

"5. Saving. Nothing contained in this
Code shall, in the absence of a specific
provision to the contrary, affect any
special or local law for the time being in
force, or any special jurisdiction or power
conferred,
or
any
special
form
of
procedure prescribed, by any other law for
the time being in force."

23. As per Sections 4 and 5 of Code
1973 all offences under any other law
(which shall include the Act 1989) shall be
investigated, inquired, tried and otherwise
dealt with according to the Code of
Criminal Procedure subject to there being
any enactment on the subject containing a
specific provision to the contrary. We find
that certain provisions of the Code 1973
have specifically been excluded from their
application to the proceedings under the
Act 1989. Section 18 of the Act 1989
excludes the application of Section 438 of
Code 1973 regarding anticipatory bail.
Sections 18 and 18A of the Act 1989
exclude any preliminary inquiry before
registration of a First Information Report
contrary to the provisions contained in
Sections 154 and 156 of Code 1973 Section
19 excludes applicability of Section 360 of
the Code 1973. The applicability of other
provisions of the Code 1973 have not been
excluded
specifically
or
generally,
therefore, it leads us to reasonably infer
that other provisions of the Code 1973 will
apply to the Courts established and
specified under the Act 1989, subject to
Section 20 thereof.

Section 20 of the Act 1989 provides as
under:

"20. Act to override other laws.--Save
as otherwise provided in this Act, the
provisions of this Act shall have effect
notwithstanding
anything
inconsistent
therewith contained in any other law for the
time being in force or any custom or usage
or any instrument having effect by virtue of
any such law."

24. As per Section 20 of the Act 1989
save as otherwise provided in the Act 1989,
the provisions of the said Act shall have
effect
notwithstanding
anything
inconsistent therewith contained in any
other law for the time being in force or any
custom or usage or any instrument having
effect by virtue of any such law. Thus,
subject to any inconsistency between the
Act 1989 and the Code 1973, the said Code
1973 would apply unless it has been
otherwise provided in the Act 1989 itself.
This would obviously refer to the exclusion
from applicability of Section 438 of Code
1973, etc. as referred in Sections 18, 18A
and 19 of the Act 1989. Apart from these
three provisions, there is no other provision
in the Act 1989 excluding the applicability
of the Code 1973 to the proceedings under
the Act 1989 which is also indicative of
applicability of other provisions of the
Code 1973 including Section 156(3) of
Code 1973, to proceedings under the Act
1989. Sections 4(2) and 5 of the Code 1973
support this reasoning.

25. The provisions of Section 4 of the
Act 1989 and Rule 5 of the Rules of 1995
do not persuade the Court to hold that as
nothing has been said beyond the said
2 All. Gyanendra Maurya @ Gullu Vs. Union of India & Ors.
881
provisions
specially
empowering
the
Courts under the Act 1989 to order lodging
of FIR and investigation, this power cannot
be exercised by such Courts. Section 4 of
the Act 1989 or Rule 5 of the Rules of 1995
which are being relied by the petitioners'
counsel, do not answer the situation where
the concerned Police Officer does not
register the FIR and the Superintendent of
Police also after being informed in terms of
Rule 5 of the Rules of 1995 does not take
any action. It is here that the Courts come
into picture as a victim cannot be left
remediless. Section 4 of the Act 1989 does
not answer or remedy this situation. The
authority to lodge an FIR is distinct from
the authority to take cognizance for
dereliction of duty under Section 4 of the
Act 1989. To say that the Exclusive Special
Court or Special Court has the power to
take cognizance of dereliction of duty in
this regard under Section 4 and also to
direct penal proceedings but not to order
lodging of FIR and investigation appears
unreasonable and incongruous and it
defeats the very object of the Act 1989.

26. The question is what happens
after non-compliance of Rule 5(3) of the
Rules of 1995 i.e., if the Officer-inCharge/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 Officerin-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.

27. After all why the Legislator
specifically excluded only few provisions
of the Code 1973 from their application to
proceedings under the Act 1989. The Act
1989 or the Rules of 1995 do not provide
the procedure to be followed by such
Courts under the Act 1989, therefore, such
procedure has to be as per the Code 1973
which is the general law applicable relating
to criminal procedure in all Courts
exercising criminal jurisdiction. We may in
this context again refer to Section 4(2) of
the Code 1973 according to which all
offences under any other law shall be
investigated, inquired into, tried, and
otherwise dealt with according to the same
provisions (Code of 1973), but subject to
any enactment for the time being in force
regulating
the
manner
or
place
of
investigating, inquiring into, trying or
otherwise dealing with such offences. We
have already noticed that there is nothing
inconsistent in the Act 1989 or the Rules of
1995 viz-a-viz the provision contained in
Section 156(3) of Code 1973 which
obviously has to be applied after the
contingencies mentioned in Rule 5 of the
Rules of 1995 are satisfied. Rule 5 of
course is analogous to Section 154 of Code
1973 Section 4 of the Act 1989 is an
additional provision to fix accountability on
the officials who are liable for dereliction
of duties by not registering any case, but,
this provision will not exclude the powers
of the Exclusive Special Court/Special
Court to order registering of FIR and its
investigation in view of Sections 4 and 5 of
the Code 1973 read with Section 20 of the
Act 1989 according to which, as discussed,
Section 156(3) of the Code 1973 will apply.
882 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

29. We may now consider Sections
156(3) and 190 of the Code 1973.

Section 190 of the Code 1973 reads as
under:

"190. Cognizance of offences by
Magistrates. (1) Subject to the provisions
of this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under
sub-
section
(2),
may
take
cognizance of any offence-

(a) upon receiving a complaint of facts
which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from
any person other than a police officer, or
upon his own knowledge, that such offence
has been committed.

(2) The Chief Judicial Magistrate may
empower any Magistrate of the second
class to take cognizance under sub- section
(1) of such offences as are within his
competence to inquire into or try."

30. Considering the issue involved in
this case, we may now refer Section 156 of
the Code 1973 which reads 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 above- mentioned."

31. Under Section 156(3) of the Code
1973, any Magistrate empowered under
Section
190
may
order
such
an
investigation as is mentioned in Section
156 quoted hereinabove.

32. The second proviso to Section
14(1) of the Act 1989 provides that the
Courts so established or specified shall
have power to directly take cognizance of
the offences under the Act 1989, meaning
thereby such Courts can exercise powers of
taking cognizance of an offence under the
Act 1989 which as per the Code of 1973 is
a pre-trial stage and is referable to Section
190 thereof. The Code of 1973 is an Act to
consolidate and amend the law relating to
criminal procedure. Taking cognizance of
an offence is dealt with under the said Code
in Section 190. As per the said provision
the power to take cognizance of any
offence
vests
with
the
Magistrate.
According to Section 193, except as
otherwise expressly provided by this Code
or by any other law for the time being in
force, no Court of Sessions shall take
cognizance of any offence as a Court of
original jurisdiction unless a case has been
committed to it by the Magistrate under this
Code. Special Court under Section 14 of
the Act 1989 is a Court of Sessions.
However, the second proviso to Section 14
(1) vests the power of taking cognizance of
an offence under the Act 1989 upon an
Exclusive Special Court or a Special Court
2 All. Gyanendra Maurya @ Gullu Vs. Union of India & Ors.
883
(which is a Court of Sessions) directly
without the case being required to be
committed by the Magistrate concerned to
it after its cognizance by the latter. Section
190 of Code 1973 has therefore to be
applied to Exclusive Special Court/Special
Court under the Act 1989 mutatis mutandis,
meaning thereby, reference therein to
Magistrate will have to be understood as a
reference to these Courts under the Act
1989. Reading of Section 190 of Code
1973 conjointly with second proviso to
Section 14(1) of the Act 1989 will make it
clear that the Exclusive Special Court or
the Special Court which is a Court of
Sessions is empowered to directly take
cognizance of an offence, thus, it exercises
powers of a Court of original criminal
jurisdiction
and
the
exercise
of
its
jurisdiction in this regard is not fettered by
the provisions of Section 193 of Code
1973. Thus, in view of second proviso to
section 14 of the Act 1989 the power
exercisable under Section 190 of Code
1973 by the Magistrate are exercisable by
the Exclusive Special Court or Special
Court as has already been discussed.

33. The fact that there is no specific
provision in the Act 1989 empowering the
Exclusive Special Court or the Special Court
to order lodging of an FIR and to investigate
the offence mentioned therein is irrelevant, as
the second proviso to Section 14(1) of the Act
1989 leaves no doubt that such Courts
exercise original criminal jurisdiction. All
offences under the Act 1989 are to be tried by
such Courts under the Act 1989 and no other
Court has jurisdiction in this regard. They can
also take cognizance of an offence directly.
Now, such cognizance of an offence can be
taken on a private complaint also in view of
Section 190 of Code 1973, application of
which is not excluded to the proceedings
under the Act 1989.

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
Chaudhari1, therefore, this power under
Section 156(3) of Code 1973 has to be
exercised by such Exclusive or Special
Courts and not the Magistrate.

35. It would have been better if the
Legislator
would
have
specifically
provided for such powers to be exercised
by the Exclusive Special Court or the
Special Court, but the fact of the matter is
that there is no specific exclusion of the
power under Section 156(3) of Code 1973
from being exercised by the Courts
established or specified under Section 14 of
the Act 1989 and in view of the second
proviso to Section 14 of the Act 1989 as
these Courts have the power to take
cognizance of an offence directly and also
to entertain a complaint directly as per
Section 190 of Code 1973, then, the
Magistrate would not have the power to
exercise jurisdiction under Section 190 in
respect of an offence under the Act 1989
and this power should only be exercised by
these Special Courts, although, if the
Magistrate in a given case erroneously
takes cognizance of an offence under the
884 INDIAN LAW REPORTS ALLAHABAD SERIES
Act 1989 and then commits the case to the
Special Court, this by itself will not vitiate
the proceedings/trial as has been held by
the Supreme Court in Shantaben Burabhai
Bhuriya (supra) and Ramveer Upadhyay
& Anr. Vs. State of U.P. & Anr.2. In view
of Section 156(3) of Code 1973 thy can
also order lodging of FIR and investigation
where the offence alleged is under the Act
1989.

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.