# Rajesh Dayal v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-30
- **Case number:** Application U/S 482 No. 22841 of 2022
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-dayal-v-state-of-u-p-ors-47753
- **Pages:** 12

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power
-
The
Scheduled
Caste
and
Scheduled Tribe (Prevention of Atrocities)
Act, 1989 - Section 14 - Special Court and
Exclusive Special Court - proviso clause of
Section
14(1)
-
Special
Judge
so
established under the Act is having
jurisdiction to directly take the cognizance
- The Scheduled Caste and Scheduled
Tribe (Prevention of Atrocities) Act, 1995 -
Rule 5 - Criminal Law Amendment Act,
1952 - Section 6, 7 and 8 - provisions of
Section 8 (1) of the 1952 Act is akin to the
proviso clause of Section 14(1) of the Act -
special judge so established under the Act
can take cognizance even on private
complaint as there is no specific denial to
that
effect
under
the
Act.
(Para
-
11,12,32,33)
546 INDIAN LAW REPORTS ALLAHABAD SERIES
Application under Section 156(3) Cr.P.C. moved
before Special Judge SC/ST Act - direct police
station concerned to register case and investigate
the matter - court below treated application as
complaint - Special Judge SC/ST Act not
empowered to take cognizance on private
complaint - order illegal - question - whether
Special Judge SC/ST Act so established under the
Act is having the same power as enjoyed by the
Magistrate under the provisions of Section 156(3)
Cr.P.C. (Para - 3,14 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - application under Section
156(3) Cr.P.C. - Magistrate having two
option - (a) either give a direction to
register the case and investigate the matter
or (b) to treat the application under Section
156(3) Cr.P.C. as complaint. (Para -13)

HELD:-Special Judge so established under the Act
can treat the application moved under Section
156(3) Cr.P.C. as a complaint. No illegality in
impugned order passed by Special Judge SC/ST
(P.A.) Act. Bench taken a different view so matter
be placed before Hon'ble The Chief Justice for
nomination of appropriate Bench to decide the
question.
Issue
already
referred
to
larger
bench.(Para -36,38,40 )

Connect
along
with
application
under
section 482 Cr.P.C. No. 14443of 2022. (E-7)

List of Cases cited:-

## Text

10 All. Rajesh Dayal Vs. State of U.P. & Ors.
545

18. This Court is of considered
opinion that as per the provision of Section
391 of Cr.P.C., the appellate court is
empowered
and
can
call
additional
evidence. Further as per the provisions of
Section 401, the High Court, in its
discretion, exercise any of the powers
conferred on a court of appeal by Section
386, 389, 390 and 391. Thus, once the High
Court is empowered to call the additional
evidence, while exercising its revisional
power, then Sessions Judge under Section
399(1) of Cr.P.C. by operation of law, is
also empowered to call an additional
evidence.

19. So far as the power of Additional
Sessions Judge under Section 400 of
Cr.P.C. is concerned, bare reading reveals
that 'Additional Sessions Judge shall have
exercised all the powers of Sessions Judge'
under chapter XXX of Cr.P.C. Had their
been any intent of the legislature, not to
give the power to Additional Sessions
Judge equivalent to the Sessions Judge,
certainly there would have been overt
provisions, in this section. This Court is of
considered opinion that the power of
Sessions Judge under Section 399 of
Cr.P.C., vest in toto, in an Additional
Sessions Judge, when he exercises the
powers under Section 400 of Cr.P.C.

20. In view of the submissions and
discussions aforesaid, the order dated
18.06.2022
passed
by
the
learned
Additional Sessions Judge, Court No. 12
Moradabad in Criminal Revision No. 94 of
is erroneous and hence is not sustainable.

21. Consequently, the order dated
18.06.2022 in Criminal Revision No. 94 of
2022 is hereby set aside.

22. The matter is remitted back to the
court below to proceed in accordance with
observations made above.

22. The instant application is allowed
accordingly.
----------
(2022) 10 ILRA 545
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2022

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 22841 of 2022

Rajesh Dayal ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Radhey Shyam Yadav

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power
-
The
Scheduled
Caste
and
Scheduled Tribe (Prevention of Atrocities)
Act, 1989 - Section 14 - Special Court and
Exclusive Special Court - proviso clause of
Section
14(1)
-
Special
Judge
so
established under the Act is having
jurisdiction to directly take the cognizance
- The Scheduled Caste and Scheduled
Tribe (Prevention of Atrocities) Act, 1995 -
Rule 5 - Criminal Law Amendment Act,
1952 - Section 6, 7 and 8 - provisions of
Section 8 (1) of the 1952 Act is akin to the
proviso clause of Section 14(1) of the Act -
special judge so established under the Act
can take cognizance even on private
complaint as there is no specific denial to
that
effect
under
the
Act.
(Para
-
11,12,32,33)
546 INDIAN LAW REPORTS ALLAHABAD SERIES
Application under Section 156(3) Cr.P.C. moved
before Special Judge SC/ST Act - direct police
station concerned to register case and investigate
the matter - court below treated application as
complaint - Special Judge SC/ST Act not
empowered to take cognizance on private
complaint - order illegal - question - whether
Special Judge SC/ST Act so established under the
Act is having the same power as enjoyed by the
Magistrate under the provisions of Section 156(3)
Cr.P.C. (Para - 3,14 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - application under Section
156(3) Cr.P.C. - Magistrate having two
option - (a) either give a direction to
register the case and investigate the matter
or (b) to treat the application under Section
156(3) Cr.P.C. as complaint. (Para -13)

HELD:-Special Judge so established under the Act
can treat the application moved under Section
156(3) Cr.P.C. as a complaint. No illegality in
impugned order passed by Special Judge SC/ST
(P.A.) Act. Bench taken a different view so matter
be placed before Hon'ble The Chief Justice for
nomination of appropriate Bench to decide the
question.
Issue
already
referred
to
larger
bench.(Para -36,38,40 )

Connect
along
with
application
under
section 482 Cr.P.C. No. 14443of 2022. (E-7)

List of Cases cited:-
1. Soni Devi Vs St. of U.P. & ors., 2022 (5) ADJ 64

2. Lalita Kumari Vs Govt. of U.P. & ors., (2014)
2 SCC 1

3. A.R. Antulay Vs Ramdas Sriniwas Nayak &
anr., (1984) 2 SCC 500

4. Anand Swaroop Tiwari Vs Ram Ratan Jatav &
ors., MANU/MP/0285/1995

(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Sri Radhey Shyam Yadav,
learned counsel for the applicant and Dr.
S.B. Maurya, learned AGA-I for the
State.

2. The instant application has been
moved on behalf of the applicant with
following prayers:-

"It is, therefore, most respectfully
prayed the this Hon'ble Court may kindly
be pleased to allow this application and
quash the order dated 24.06.2022 passed
by Special Judge, SC/ST (P.A.) Act, Etah in
Criminal Misc. Case No. 239 of 2022,
Rajesh Dayal versus Rajpal and others,
Police
station-Marhara,
District-Etah,
pending in the court of Special Judge,
SC/ST (P.A) Act, Etah.

It is further prayed that this
Hon'ble Court may kindly be pleased to
direct to court below to pass a fresh, reason
and speaking order in accordance with law
in Criminal Misc. Case No. 239 of 2022,
Rajesh Dayal versus Rajpal and others,
Police
station-Marhara,
District-Etah
under Section 156(3) of Cr.P.C. and/or pass
such other and further order which this
Hon'ble Court may deem fit and proper
under the facts and circumstances of the
case, otherwise the applicant shall suffer
irreparable loss and injury."

3. Learned counsel for the applicant
submitted
that
applicant
moved
an
application under Section 156(3) Cr.P.C.
with a prayer to direct the police station
concerned
to
register
the
case
and
investigate the matter but instead of doing
so, the court below treated the said
application
as
complaint.
He
next
submitted that as Special Judge SC/ST Act
is not empowered to take cognizance on
private complaint, therefore, order dated
24.06.2022 is illegal. He further submitted
that if an application under Section 156(3)
Cr.P.C. is moved before Special Judge
SC/ST Act then he is having no authority to
treat the said application as criminal
10 All. Rajesh Dayal Vs. State of U.P. & Ors.
547
complaint and only option before the
Special Judge is that either he dismiss the
application moved under Section 156(3)
Cr.P.C. or direct the local police to register
the case and investigate the matter. Learned
counsel for the applicant confined his
argument only to the extent that the court
below is not having any authority to treat
the application under Section 156(3)
Cr.P.C. as a criminal complaint.

4. Learned counsel for the applicant
placed reliance in the case of Soni Devi Vs.
State of U.P. and others 2022 (5) ADJ 64
and submitted that the issue as to whether an
application under Section 156(3) Cr.P.C can
be treated as complaint or not by Special
Judge SC/ST Act is no more res-integra but it
has been authoritatively decided by the coordinate Bench of this Court in above noted
case of Soni Devi (supra) and according to
the law laid down in Soni Devi case (supra)
an application under Section 156(3) Cr.P.C.
cannot be treated as criminal complaint by
Special Judge SC/ST Act and only option
before the court is to direct for registration of
the case and to investigate the matter.
Learned counsel for the applicant next
submitted that as the impugned order dated
24.06.2022 is contrary to the law laid down
by this Court in case of Soni Devi (supra),
therefore, it is liable to be quashed as Special
Judge SC/ST Act was not having any
authority to treat the application moved by
applicant under Section 156(3) Cr.P.C. as
complaint and he had to pass a direction to
register the FIR and to investigate the matter
as application moved by the applicant under
Section 156(3) Cr.P.C. prima facie disclosed
cognizable offences against opposite party
nos. 2 to 6.

5. Per contra, learned AGA submitted
that there is no illegality in the impugned
order dated 24.06.2022 as Special Judge
SC/ST Act is having jurisdiction either to
direct for investigation under Section
156(3) Cr.P.C. or to treat the application
moved under Section 156(3) Cr.P.C. as a
criminal complaint. Learned AGA next
submitted that by virtue of amendment of
2016 as per Section 14 of Scheduled Caste
and
Scheduled
Tribe
(Prevention
of
Atrocities) Act, 1989 (hereinafter referred
to as ''the Act' in short), Special Judge
SC/ST Act is having power to directly take
cognizance of the offence under the
provisions of the Act, therefore, Special
Judge, SC/ST Act being court of original
jurisdiction is having all the powers and
law is settled that if any application under
Section 156(3) Cr.P.C. is moved then court
is not bound to pass a direction to register
the FIR and investigate the matter. Learned
AGA next submitted that if the court is of
the view that there is no necessity to pass
such direction under Section 156(3) Cr.P.C.
then it can treat the application moved
under Section 156(3) as a criminal
complaint,
therefore,
by
treating
the
application moved by applicant under
Section 156(3) Cr.P.C. as a complaint, court
below did not commit any illegality.

6. I have heard both the parties and
perused the record of the case.

7. I have gone through the judgment
passed by the co-ordinate Bench of this
Court in case of Soni Devi (supra).

8. In the case of Soni Devi (supra)
two questions were framed. The first
question is not being referred as the same
does not relate to the present dispute. The
second question as framed therein in
paragraph no. 15 is as follows:-

"15. The second question for
consideration before this Court is as to
548 INDIAN LAW REPORTS ALLAHABAD SERIES
whether Special Judge can treat the
application under Section 156(3) Cr.P.C. as
a complaint case or not."

9. The answer is given to the second
question in paragraph no.18 in Soni Devi
case (supra) as follows:-

"18. .... Therefore answer to the
second question that Special Judge can
treat the application under Section 156
(3)Cr.P.C. as a complaint case or not ?
Answer is "No" in view of Rule 5(1) of the
Amended Act."

10. As per section 14 of the Act
Special court established under the Act for
the purpose to provide speedy trial. Section
14 of the Act runs as follows:-

"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
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."

11. According to the proviso clause of
Section 14(1) of the Act, the special court
so established shall have power to directly
take cognizance of the offences under the
Act.

12. Therefore, from the perusal of the
proviso clause of Section 14(1) of the Act,
it appears that Special Judge so established
under the Act is having jurisdiction to
directly take the cognizance.

13. The law is settled that if an
application under Section 156(3) Cr.P.C. is
moved then the Magistrate is having two
option;

(a) either give a direction to
register the case and investigate the matter;
or
10 All. Rajesh Dayal Vs. State of U.P. & Ors.
549

(b) to treat the application under
Section 156(3) Cr.P.C. as complaint

(See Mona Panwar Vs. High
Court of Judicature at Allahabad (2011) 3
SCC 496).

14. Therefore, the question arises
whether Special Judge SC/ST Act so
established under the Act is having the same
power as enjoyed by the Magistrate under the
provisions of Section 156(3) Cr.P.C.

15. In view of the Soni Devi case
(supra) the Special Judge so established
under the Act is not having any authority to
treat the application under Section 156(3)
Cr.P.C. as criminal complaint. From the
perusal of the judgment of Soni Devi (supra)
it reflect that the co-ordinate Bench of this
Court in view of the Rule 5(1) of the
amended Act held that Special Judge cannot
treat the application under Section 156(3)
Cr.P.C. as complaint.

16. Rule 5 of The Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities)
Act, 1995 reads as under:-

"5. (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 in-charge
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
the police station."

17. Therefore, from the perusal of
Rule 5(1) of the amended Act it reflects
that it is duty of an officer incharge of
police station that he shall lodge the FIR on
the basis of every information relating to
the commission of offene under the Act
even if it given orally.

18. Therefore, the Rule 5(1) of the
amended Act is almost similar to Section
154 Cr.P.C., which runs as follows:-

"154.
(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:
550 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that if the information is
given by the woman against whom an
offence under section 326A, section 326 B,
section 354, section 354A, section 354B,
section 354C, section 354D, section 376,
section 376A, section 376AB, section 376B,
section
376C,
section
376D,
section
376DA, section 376DB, section 376E or
section 509 of the Indian Penal Code (45 of
1860) 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, section 376AB, section 376B, section
376C, section 376D, section 376DA,
section 376DB, section 376E or section 509
of the Indian Penal Code (45 of 1860) 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 videographed;

(c) the police officer shall get the
statement of the person recorded by a
Judicial Magistrate under clause (a) of
sub-section (5A) of section 164 as soon as
possible.

(2) A copy of the information as
recorded under sub-section (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 sub-section (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."

19. It is settled law that if any
information given to police officer discloses
cognizable offences then it is the duty of the
police officer to register the case and
investigate the matter. The Constitution Bench
of the Apex Court in case of Lalita Kumari
Vs. Government of Uttar Pradesh and
others (2014) 2 SCC 1 held that the
registration of FIR is mandatory under Section
154 of the Code, if the information discloses
commission of a cognizable offence and no
preliminary inquiry is permissible in such a
situation (See para 120.1).

20. Therefore, in my considered view,
the Rule 5(1) of the amended Act does not
ousted the jurisdiction of Special Judge to treat
the application under Section 156(3) Cr.P.C. as
complaint.

21. The issue with regard to the power of
Special Judge has come before Constitution
Bench of the Apex Court in case of A.R.
Antulay Vs. Ramdas Sriniwas Nayak and
another (1984) 2 SCC 500 in respect of
Criminal Law Amendment Act, 1952.
10 All. Rajesh Dayal Vs. State of U.P. & Ors.
551

22. Section 6, 7 and 8 of Criminal
Law Amendment Act, 1952 runs as
follows:-

"6. Power to appoint special
judges. (1) The State Government may, by
notification in the Official Gazette, appoint as
many special judges as may be necessary for
such area or areas as may be specified in the
notification to try the following offences,
namely:-

(a) an offence punishable under
section 161, section 165 or section 165A of
the Indian Penal Code (Act XLV of 1860) or
sub-section (2) of section 5 of the Prevention
of Corruption Act, 1947 (11 of 1947);

(b) any conspiracy to commit or
any attempt to commit or any abetment of any
of the offences specified in clause (a).

(2) A person shall not be for
qualified for appointment as a special judge
under this Act unless he is, or has been, a
sessions judge or an additional sessions
judge or an assistant sessions judge under the
Code of Criminal Procedure 1898 (Act V of
1898).

7. Cases triable by special judges.-
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1898 (Act V
of 1898) or in, any other law the offences
specified in sub-section (1) of section 6 shall
be triable by special judges only

(2) Every offence specified in subsection (1) of section 6 shall be tried by the
special judge or the area within which it was
committed, or where there are more special
judges than one for such area, by such one of
them as may be specified in this behalf by the
State Government.

(3) When trying any case, a
special judge may also try any offence
other than an offence specified in section 6
with which the accused may, under the
Code of Criminal Procedure. 1898, be
charged at the same trial.

8. Procedure and powers of
special judges-(1) A special judge may take
cognizance of offences without the accused
being committed to him for trial, and in
trying the accused persons, shall follow the
procedure prescribed by the Code of
Criminal Procedure, 1898 (Act V of
18981), for the trial of warrant cases by
Magistrates.

(2) A special judge may, with a
view to obtaining the evidence of any
person supposed to have been directly or
indirectly concerned in, or privy to, an
offence, tender a pardon to such person
on condition of his making a full and true
disclosure of the whole circumstances
within his knowledge relating to the
offence and to every other person
concerned, whether as principal or
abettor, in the commission thereof; and
any pardon so tendered shall, for the
purposes of sections 339 and 339A of the
Code of Criminal Procedure, 1898, be
deemed to have been tendered under
Sections 338 of that Code.

3. Save as provided in sub-section
(1) or sub-section (2), the provisions of the
Code of Criminal Procedure, 1898 shall, so
far as they are not in consistent with this
Act, apply to the proceedings before a
special judge; and for the purposes of the
said provisions, the court of the special
judge shall be deemed to be a court of
session trial cases without a jury or without
the aid of assessors and the person
conducting a prosecution before a special
judge shall be deemed to be a public
prosecutor.
552 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) A special judge may pass
upon any person convicted by him any
sentence authorised by law for the
punishment of the offence of which such
person is convicted."

23. Section 6 of the Criminal Law
Amendment Act, 1952 empowers the State
Government to appoint as many Special
Judges as are necessary to try the specified
categories of offences. Section 7 makes it
clear that such offences should be tried
only by the Special Judges. Section 8
expressly empowers the Special Judge to
take cognizance of offences without the
accused being committed or tried and that
in trying the accused shall follow the
procedure prescribed by the Old Code for
trial of warrant cases by the Magistrates.

24. From the perusal of A.R. Antulay
case (supra) it appears that a private
complaint was filed against A.R. Antulay
alleging commission of offence triable by
Special Judge under the Act of 1952. The
Special Judge took cognizance of the
offences upon the complaint and adjourned
the case for recording evidence of the
complainant and on the adjourned day, A.R.
Antulay appeared and contended, inter alia,
that Special Judge cannot take cognizance
upon a private complaint. Section 5-A of
the Prevention of Corruption Act, 1947
requires a prior investigation by Police
Officer of the designated rank.

25. The Constitution Bench of the
Apex Court while discussing the matter
observed in para 18 as:-

"It is a well-established canon of
construction that the court should read the
section as it is and cannot rewrite it to suit
its convenience; nor does any canon of
construction permit the court to read the
section in such manner as to render it to
some extent otiose. Sec. 8 (1) says that the
special Judge shall take cognizance of an
offence and shall not take it on commitment
of the accused. The Legislature provided
for both the positive and the negative. It
positively conferred power on special
Judge to take cognizance of offences and it
negatively
removed
any
concept
of
commitment. It is not possible therefore, to
read Sec. 8 (1) as eanvassed on behalf of
the appellant that cognizance can only be
taken upon a police report and any other
view will render the safeguard under
Section 5A* illusory."

(*Section
5A
Prevention
of
Corruption Act, 1947)

26. The Apex Court in case of A.R.
Antulay (supra) disapproved the contention
that a private complaint is not maintainable
in absence of unambiguous provision in
Criminal Law Amendment Act, 1952 to
that effect. The Apex Court referred the
express provision of Section 8 of the Act,
1952 and noticed that these express
provisions did not bar initiation
of
proceedings of a private complaint.

27. The Apex Court at the beginning
of paragraph no. 27 stated as:-

"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."

28. The Apex Court after referring to
Section of the old Code according to
which, there are four types of criminal
10 All. Rajesh Dayal Vs. State of U.P. & Ors.
553
Courts functioning under the High Court,
namely,
Court
of
Session,
Judicial
Magistrate of the First Class, Judicial
Magistrate of the Second Class and
Executive Magistrate observed as:-

"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."

29. The Apex Court further observed:-

"Now that a new Criminal Court
was being set up, the Legislature took the
first step of providing its comparative
position
in
hierarchy
of
Courts
under Section
6, Criminal
Procedure
Code by bringing it to 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
Session because it can take cognizance of
offences
without
commitment
as
contemplated
by Section
193, Criminal
Procedure Code. Undoubtedly, in Section
8(3), it was clearly laid down that subject
to the provisions of sub-sections (1) and (2)
of Section 8, the Court of Special Judge
shall be deemed to be a Court of Session
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."

30. Dealing with the question whether
Special Judge is a Magistrate or the Court
of Session, the Apex Court further
observed:-

"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
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 sub-section (2) of Section 8 and to
leave no one in doubt further provided in
sub-section (3) that all provisions of the
Criminal Procedure Code 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
Procedure Code, 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 is that a new Court of
original jurisdiction was set up and
wherever 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 Procedure Code undaunted by
any designation clantrap. When taking
cognizance a Court of Special Judge
enjoyed powers under Section 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
554 INDIAN LAW REPORTS ALLAHABAD SERIES
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 the shot 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."
 (Emphasis supplied)

31. Further, the Apex Court in para 28
observed as:-

"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 Code of
Criminal Procedure, except those specifically
excluded."

32. Therefore, from the perusal of the
above observation and the law laid down
by the Apex Court in the case of A.R.
Antulay (supra) it is abundantly clear that
Special Judge under the 1952 Act is a Court
of original jurisdiction enjoys all the
powers except the one specifically denied.

33. The provisions of Section 8 (1) of the
1952 Act is akin to the proviso clause of Section
14(1) of the Act, which clearly states that
Special Judge so established under the Act can
directly take the cognizance of the offences
under the Act and in view of Constitution
Bench of the Apex Court special judge so
established under the Act can take cognizance
even on private complaint as there is no specific
denial to that effect under the Act.

34. Therefore, in view of the law laid
down by the Constitution Bench of the Apex
Curt in case of A.R. Antulay (supra) a Special
Judge so established under the Act being the
court of original jurisdiction is having all the
powers which a court of original jurisdiction
enjoys including the power either to direct for
registration of the case under Section 156(3)
Cr.P.C. or take cognizance on private complaint.

35. It is pertinent to mention here that
the Full Bench of Madhya Pradesh High
Court (Gwalior Bench) in the case of Anand
Swaroop Tiwari Vs. Ram Ratan Jatav and
others
MANU/MP/0285/1995
after
discussing the Constitution Bench case of
A.R. Antulay (supra) concluded as:-

"In the result, we hold as follows :

(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
10 All. Rajesh Dayal Vs. State of U.P. & Ors.
555
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."

36. Therefore, from the above
discussion, I am of the view that Special
Judge so established under the Act can
treat
the
application
moved
under
Section 156(3) Cr.P.C. as a complaint
and thus there is no illegality in
impugned order dated 24.06.2022 passed
by Special Judge SC/ST (P.A.) Act, Etah.

37. Therefore, I am in respectful
disagreement with the view taken by coordinate Bench of this Court in case of
Soni Devi (supra) that Special Judge so
established under the Act is having no
power
or
authority
to
treat
the
application moved under Section 156(3)
Cr.P.C. as complaint.

38. As this Bench has taken a
different view from the view taken in the
case of Soni Devi (supra) with regard to
the second question, therefore, let the
matter be placed before Hon'ble The
Chief
Justice
for
nomination
of
appropriate Bench to decide following
question:-

"Whether Special Judge so
established under the Act is empowered
to treat application moved under Section
156(3) Cr.P.C. as criminal complaint or
not."

39. Recently, another co-ordinate
Bench of this Court in Application under
Section 482 Cr.P.C. No. 14443 of 2022
Naresh Kumar Valmiki Vs. State of U.P.
and others took a different view from the
view taken in the case of Soni Devi
(supra) in respect of second question and
referred the matter to larger Bench for
appropriate decision.

40. As the instant issue has already
referred to larger Bench in Application
under Section 482 Cr.P.C. No. 14443 of
2022, therefore, in view of the matter
connect the instant application along
with Application under Section 482
Cr.P.C. No. 14443 of 2022.

41. Since, there is difference of
opinion in respect of the view taken in
the case of Soni Devi (supra) by coordinate Bench of this Court, therefore,
prayer
for
staying
the
effect
and
operation of the impugned order is
refused.
----------
556 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 10 ILRA 556
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.08.2022 &
07.09.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Application U/S 482 No. 23143 of 2021

Mohd. Shakib ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Mani Shanker Tripathi

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 451,457 & 482
- Inherent power - - U.P. Cow Slaughter
Act, 1955 - Sections 3/5A/8, 5B -
provides for confiscation and release of
vehicle by which beef or cow and its
progeny is transported in violation of the
provision of this Act and the relevant rules
- The Prevention of Cruelty to Animals Act,
1960 - Section 11 - Treating animals
cruelly
- no permit is required for
transportation of cow or its progeny
within the State of Uttar Pradesh.(Para -
12,13 )

Applicant transporting cow and its progeny by
the vehicle in question - impugned orders
passed District Magistrate - confiscating the said
vehicle - revision filed before Special Judge
(SC/ST Act) - dismissed revision of applicant -
are according to law or not - question -
whether applicant violated any provision of law
or not. (Para -10)

HELD:-Transportation of a cow and its progeny
within the state of Uttar Pradesh is not a
violation of any of the provisions of the Cow
Slaughter Act. Seized vehicle in question was
not used in violation of Section 5A (1) to (11) or
any provisions of the Cow Slaughter Act. Police
has no power or jurisdiction to seize or
confiscate the vehicle in question. District
Magistrate
passed
confiscation
order
in
contravention
of
the
law
&
is
without
jurisdiction. Revisional court not considered
relevant provisions of Section 5A of Cow
Slaughter Act while dismissing criminal revision
of the applicant.(Para -13 )

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-
1. Sunderbhai Ambalal Desai & C.M. Mudaliar Vs
St. of Guj. ,AIR 2003 SC 638 Criminal Revision
No. 131 of 2005

2. Kailash Yadav & ors. Vs St. of U.P. & ors.,
2008(10) ADJ 623

(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Shri Mani Shanker Pandey,
learned counsel for the applicant, Shri L.D.
Rajbhar, learned A.G.A. for the Stateopposite party no.1 and perused the record.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of the impugned order dated
18.08.2021 passed by District Magistrate,
Varanasi in Case No. 00054 of 2021 (State
vs. Mohammad Shakib), under Section 5A
U.P. Cow Slaughter Act, 1955, as well as
order dated 13.10.2021 passed by Special
Judge (SC/ST Act), Chandauli in Criminal
Revision No. 54 of 2021 (Shakib vs. State
of U.P.).

3. Brief facts of the case are that
applicant is registered owner of vehicle no.
UP-70ET/2667 which is duly registered in
the
Transport
Department,
U.P,
the
photostat copy of registration certificate has
been annexed as Annexure No.2 to the
affidavit. The aforesaid vehicle was insured
with Oriental Insurance Company Ltd. for