Bhuvnesh Kumari & Ors. vs State Of U.P. & Anr.

Hon'Ble Santosh Rai, J.

Heard Sri Saghir Ahmad, learned Senior Counsel assisted by Sri Mohd. Raghib Ali, learned counsel for the appellants; Sri Sanjay Kumar Srivastava, learned counsel for opposite party no.2; Sri Shyam Narayan Rai, learned AGA for the State and perused the material on record.

The present criminal appeal has been filed by the appellants with a prayer to set aside the impugned order dated 6.10.2018 passed by IInd Additional Session Judge/Special Judge, SC/ST Act, Meerut in Criminal Misc. No.203 of 2018 (Smt. Saroj vs. Station House Officer Sandeep Kumar Singh and 15 others), arising out of Case Crime No.530 of 2017, under Sections 323, 332, 351, 354B, 376B, 392, 406, 499, 504, 506, 509, 120B IPC and Sections 3(2)(1), 7, 3(XI) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, P.S.-Kharkhoda, District- Meerut, whereby the trial court has rejected the final report and treated protest petition as complaint case.

The brief contents of the complaint/FIR involve allegations by the complainant, Smt. Saroj, that after she demanded the repayment of a loan of Rs.20,000/- from one Sonu, Sonu colluded with the Station House Officer (SHO) Pradeep Kumar Singh and other police personnel of Police Station Kharkhoda, Meerut. The complainant states that on June 18, 2017, she was summoned to the police station where she faced severe caste-based slurs, physical assault, brutal custodial torture, and humiliation by the named police officers and other individuals. Furthermore, she alleges that valuables and cash were missing following the incident, that she was coerced under threats during her production before the magistrate, and that local authorities failed to take timely action on her initial complaints, leading her to seek legal remedy under relevant sections of the IPC and the SC/ST (Prevention of Atrocities) Act.

The Investigating Officer has submitted final report concluding that the case (Crime No.530/2017) was registered against the SHO and 15 others pursuant to a court order under Section 156(3) CrPC lacked supporting evidence during the course of the investigation, which included reviewing statements, site inspections, and affidavits. The officer noted that the allegations made by the complainant were not substantiated by eyewitnesses and appeared to be a counterblast to Case Crime No.299/2017. Consequently, due to this complete lack of evidence, the final report recommended closing the investigation and requested the court's approval to accept the closure.

After submission of final report by the I.O, the complainant has filed protest petition supported by affidavits of Shivani @ Anamika, Ranbir Singh, Subhash Saini, Rajendra Saini, Tejpal, Rawat and Jay Prakash alongwith newspaper cutting, photographs etc in order to support the 'contents of protest petition'.

The trial court vide order dated 6.10.2018 has treated the protest petition into complaint case and passed following order:-

Thereafter the accused appellants were summoned by the trial court under Sections 323, 504, 506, 354B, 509, 120B and Sections 3(2)(7), 3(1)(r), 3(2)(va) SC/ST Act on the basis of evidence available on record during the course of inquiry proceeding.

In brief the grounds of appeal are that the application under Section 156(3) CrPC was entertained despite the complainant having allegedly failed to comply with the mandatory requirement of Section 154(3) CrPC, thereby vitiating the initiation of the proceedings. After a full-fledged investigation culminating in the Final Report dated 24.01.2018, the learned court rejected the Final Report and treated the protest petition as a complaint without exercising jurisdiction in accordance with Section 190(1)(a) Cr.P.C., rendering the impugned order dated 6.10.2018 legally unsustainable. The appellants, being police officials posted at Police Station Kharkhauda at the relevant time, were alleged to have acted in the discharge of their official duties, and therefore cognizance and prosecution could not have proceeded in the absence of prior sanction under Section 197 CrPC, thereby vitiating the entire criminal proceedings. The summons dated 30.11.2019 was issued without ensuring compliance with the mandatory requirement of Section 204(2) CrPC regarding submission of the list of prosecution witnesses. The learned trial court failed to appreciate the statutory safeguards available to public servants while rejecting the appellants' discharge application on 02.09.2022. The cumulative non-compliance with Sections 154(3), 190(1)(a), 197 and 204(2) CrPC constitutes a fundamental procedural illegality, rendering the complaint proceedings an abuse of the process of law. The impugned order dated 06.10.2018, by which the Final Report was rejected and the protest petition was treated as a complaint, is the foundation of all subsequent proceedings; consequently, the summoning order dated 30.11.2019 and all consequential proceedings in Complaint Case No. 39 of 2018 are liable to be set aside.

Further, in rejoinder affidavit filed by learned counsel for the appellants, it has been stated that the consequential pending proceeding is the consequence of the impugned order, dated 06.10.2018. It is further submitted, the learned trial court in order to passed impugned order has not exercised its discretion judicious in manner as prescribed under the mandate of section 190(1)(a) of CrPC. The learned trial court in order to passed impugned order has not recorded any finding in order to reject conclusion of the investigation. The learned trial court in order to pass such order has taken into consideration affidavits of the witnesses filed in support to the protest petition. While as such, affidavits filed along with the protest petition may not be taken into consideration in order to adjudicate protest petition and to reject the conclusion arrived by the investigating officer submitted in the form of final report. Because, the affidavit of witness is not part of the police diary according to section 172 of CrPC.

Learned counsel for opposite party no.2 has opposed the grounds of the appellants through counter affidavit briefly on following grounds:-

Learned counsel for the appellants submits that the impugned order is wholly non-speaking and has been passed without proper application of judicial mind. The Final Report submitted after investigation has been rejected and the protest petition has been treated as a complaint mainly on the basis of affidavits, photographs and newspaper cuttings, without properly considering the case diary/material collected during investigation. It is further submitted that all the thirteen appellants are police personnel/public servants and the applicability of Section 197 Cr.P.C. has not been considered. There is no specific allegation disclosing the essential ingredients of the offences under the SC/ST Act. One criminal case was also registered against the victim Saroj on the very same day. Hence, the order of cognizance and all consequential proceedings deserve to be quashed.

Learned counsel for opposite party no.2, on the other hand, submits that the learned Special court was competent to disagree with the Final Report and to take cognizance on the basis of the protest petition and material placed before it. The affidavits and other documents disclosed a prima facie case, and the correctness of such material cannot be examined at the stage of cognizance. The question of sanction under Section 197 Cr.P.C., contradictions in the statements and the existence of the criminal case against informant/victim herself on the very same day are to be considered during trial. Further the statement under Section 244 Cr.P.C. has already been recorded and discharge application has also been rejected under Section 245 Cr.P.C. It is, therefore, submitted that no interference is warranted and the appeal is liable to be dismissed.

The preliminary objection raised by learned counsel appearing for opposite party no.2/informant that the impugned order taking cognizance upon the protest petition is merely an interlocutory order and, therefore, no appeal under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Act”) would be maintainable.

Section 14-A(1) of the Act provides for an appeal to the High Court against “any judgment, sentence or order, not being an interlocutory order” passed by the Special Court or Exclusive Special Court, both on facts and on law. The expression “order” occurring in Section 14-A cannot be confined only to final orders bringing the entire proceedings to an end. The statutory exclusion is confined to a purely interlocutory order. The distinction between a final, intermediate and interlocutory order has been authoritatively explained by the Supreme Court.

In Amar Nath & Ors. Vs. State of Haryana & Anr. (1977) 4 SCC 137, the Supreme Court held in para 6 as under:-

In Madhu Limaye Vs. The State of Maharashtra (1977) 4 SCC 551, the Supreme Court held in para 12, 13 as under:-

In K.K. Patel & Anr. Vs. State of Gujarat & Anr. (2000) 6 SCC 195, the Supreme Court held in para 6, 11 as under:-

In Girish Kumar Suneja Vs. Central Bureau of Investigation (2017) 14 SCC 809, the Supreme Court held in para 21 as under:-

Thus, briefly, in Amar Nath & Ors. (supra) the Supreme Court held that the expression “interlocutory order” has to be understood in a restricted sense and an order which substantially affects the rights of the accused cannot be treated as a purely interlocutory order. The principle was further explained in Madhu Limaye (supra), wherein the Supreme Court recognised the category of intermediate orders, which, though passed at an intermediate stage of the proceedings, have the effect of finally determining an important aspect of the proceedings. The same principle was reiterated in K.K. Patel and Another (supra), wherein it was held that, for determining whether an order is interlocutory, the mere fact that it has been passed during the pendency of the proceedings is not decisive. What is material is the nature and effect of the order. The position was authoritatively summarised by the three-Judge Bench in Girish Kumar Suneja (supra), that an order taking cognizance of an offence and summoning an accused is an intermediate order. Though such an order is passed at an intermediate stage, if it is reversed, the criminal proceedings against the concerned accused come to an end and, therefore, it cannot be regarded as a purely interlocutory order.

The aforesaid principle assumes greater significance in the present case because the learned Special Court, upon rejecting the final report, registered the protest petition as a complaint and directed the informant to proceed under Section 200 Cr.P.C. Thus, the impugned order is not a mere procedural or ancillary order passed in the course of an already pending complaint. It has the substantive effect of rejecting the conclusion reached by the Investigating Officer in the final report, setting the criminal law in motion on the basis of the protest petition and initiating a complaint proceeding against the appellants. If the impugned order is set aside, the proceedings initiated pursuant thereto would come to an end; conversely, if it is sustained, the criminal proceedings would continue. It, therefore, squarely falls within the category of an intermediate order and not a purely interlocutory order.

In Gulam Rasool Khan & Ors. Vs. State of U.P. & Ors. 2022 SCC OnLine All 975 & In Re: Provision of Section 14-A of the SC/ST Act 2018 SCC OnLine All 2087, the Full Bench of this Court, while considering the scope of Section 14-A of the Act, has also held that the expression “order” occurring in Section 14-A(1) includes an intermediate order passed by the Special Court or Exclusive Special Court. Consequently, an intermediate order passed by the Special Court in a proceeding relating to an offence under the Act is amenable to the statutory appellate jurisdiction of this Court under Section 14-A. Furthermore as per verdict of Full Bench, there is no period of limitation to file appeal under SC/ST Act. In fact, this Court has specifically applied the ratio of Girish Kumar Suneja (supra) to an order taking cognizance under the SC/ST Act and has held that an order of cognizance is an intermediate order and, therefore, an appeal under Section 14-A(1) is maintainable. Accordingly, the preliminary objection regarding maintainability is rejected. The impugned order taking cognizance/rejecting the final report and treating the protest petition as a complaint is not a purely interlocutory order. The present appeal under Section 14-A(1) of the Act is, therefore, maintainable.

Having considered the material available on record in its entirety, this Court finds that the order of cognizance, insofar as it proceeds against the appellants under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, cannot be sustained. Crime No.530 of 2017 was registered at Police Station Kharkhoda, District Meerut, against fifteen named accused persons and one unknown person. Out of the named accused, thirteen accused persons, namely, Bhuvanesh Kumari, Monica, Sarita, Suman, Anil Kumar Sharma, Dinesh Kumar, Sandeep Kumar Singh, Tarun Kumar, Raees Pal, Kartar Singh, Madan Tyagi, Risal Singh and Ram Bhool Singh, are police personnel and were posted at the police station in question at the time of occurrence. The remaining accused included Sonu and Babu Ram the village Pradhan. Thus, the allegation is substantially directed against police personnel in respect of an occurrence alleged to have taken place within the police station premises itself.

A significant circumstance emerging from the record is that the informant Saroj herself had reached the police station on the date of occurrence. It is further borne out from the material placed on record that in connection with the same occurrence, Crime No.299 of 2017 was registered on 18.06.2017 against Saroj under Sections 323, 332, 353, 504 and 506 IPC, on the basis of the report lodged by Lady Constable No.2879 Bhuvanesh Kumari, who herself has subsequently been arrayed as an accused in present case bearing Crime No.530 of 2017. The prosecution material further indicates that some of the lady police personnel sustained injuries in the incident and Saroj was arrested in connection with the said case and was sent to jail. Thus, the above two cases cannot be examined in isolation; the existence, nature and chronology of both the cases are relevant circumstances for determining whether the allegations subsequently levelled against the police personnel disclose the ingredients of the offences alleged or whether the subsequent prosecution has arisen out of the same incident in the backdrop of the earlier criminal case against the informant.

The further circumstance which assumes importance is that the alleged occurrence is of 18.06.2017, whereas Crime No.530 of 2017 came to be registered only on 18.10.2017, i.e. after about four months. The delay by itself may not necessarily be fatal to a criminal prosecution, but when considered along with the contemporaneous registration of Crime No. 299 of 2017 against the informant, the fact that the informant was herself present at the police station, the allegation that she had obstructed/misbehaved with police personnel performing their official duties, the injuries allegedly suffered by police personnel and the fact that one of the police officials who had lodged the earlier case was subsequently arrayed as an accused in the later case, these circumstances assume considerable significance. The informant/victim Saroj was arrested, taken into custody and thereafter sent to jail. These facts are briefly stated in paragraph 4 of the protest petition itself. They constitute relevant material for examining the bona fides of the subsequent prosecution and could not have been brushed aside while exercising the power of taking cognizance.

More importantly, even if the allegations contained in the FIR and the protest petition are taken at their face value, there is no specific allegation against the appellants that any particular appellant intentionally insulted or intimidated the informant or committed any offence under SC/ST Act on account of her belonging to a Scheduled Caste or Scheduled Tribe. There is no specific casteist utterance attributed to any particular appellant. There is also no specific allegation explaining as to which accused knew the caste identity of the informant, in what manner such knowledge was acquired, and how the alleged act was motivated by the caste identity of the informant. Mere reference to the fact that the informant belongs to a Scheduled Caste cannot substitute the statutory requirement that the alleged act must have been committed because of her caste status. The law on this aspect is no longer res integra. In Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710, the Hon’ble Supreme Court held that every insult or intimidation of a person belonging to a Scheduled Caste or Scheduled Tribe does not constitute an offence under the SC/ST Act; the insult or intimidation must be on account of the victim belonging to such caste or tribe. The Court specifically held that the offence is not established merely because the informant is a member of a Scheduled Caste, unless there is an intention to humiliate the person for the reason that he or she belongs to such caste. The aforesaid principle has subsequently been reiterated and explained by the Supreme Court in Shajan Skaria v. State of Kerala, 2024 SCC OnLine 2249.

In the present case, the allegations do not disclose any such specific caste-based intention. The mere fact that the appellants were posted at the police station where the occurrence is alleged to have taken place cannot, by itself, establish that each of them had knowledge of the caste identity of the informant or that any act was committed against her because of such caste identity. More particularly, when the occurrence arose in the course of an incident in which the informant herself is alleged to have caused injuries to police personnel and a contemporaneous criminal case had already been registered against her for obstructing and assaulting public servants, the possibility that the subsequent allegations were made as a reaction to the earlier criminal prosecution cannot be ignored. It is also material that the residential districts of the police personnel are different, namely Moradabad, Saharanpur, Aligarh, Bulandshahr, Mirzapur, Mathura, Hapur and Gautam Budh Nagar, whereas they were posted at Police Station Kharkhoda, District Meerut. This circumstance, standing alone, is not sufficient to exonerate them; nevertheless, in the absence of any specific allegation of caste-based knowledge, casteist utterance or caste-motivated conduct, it assumes relevance while examining whether a prima facie offence under the SC/ST Act was actually disclosed against each individual appellant. The criminal law cannot proceed against a group of persons merely on the basis of their presence at the place of occurrence without specific attribution of the statutory ingredients of the offence.

The Special Court was, therefore, required to examine the allegations against each accused with reference to the essential ingredients of the particular offences invoked. Instead, the impugned order proceeds upon general and omnibus allegations and does not disclose any specific finding as to how the ingredients of the relevant provisions of the SC/ST Act are satisfied against each of the appellants. The order of cognizance is consequently vitiated by non-application of judicial mind. Cognizance is not a mechanical exercise; the Court is required to examine whether the material placed before it discloses the commission of an offence and whether the statutory ingredients are prima facie satisfied. The Supreme Court has repeatedly recognised that where the allegations, even if accepted in their entirety, do not constitute the offence alleged, or where the prosecution is manifestly attended with mala fide or has been instituted for an ulterior purpose, the High Court is justified in exercising its inherent jurisdiction to prevent abuse of the process of law. The principles enumerated in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, continue to govern such cases. At the same time, the Court must distinguish a genuine prosecution from a prosecution which, on the face of the record and in the light of admitted contemporaneous circumstances, appears to have been set in motion for a collateral purpose. In the facts of the present case, the admitted chronology—namely, the occurrence dated 18.06.2017, registration on the same date of Crime No. 299 of 2017 against the informant for offences relating to assault/obstruction of police personnel, the arrest and incarceration of the informant in that case, the subsequent registration on 18.10.2017 of Crime No.530 of 2017 against the police personnel who were connected with the earlier incident, and the absence of any specific allegation of caste-based insult, intimidation or casteist utterance etc creates a circumstance in which the prosecution under the SC/ST Act cannot be permitted to continue merely on the basis of omnibus allegations. Thus, even if the allegations contained in the FIR and the protest petition are accepted in their entirety, the basic ingredients necessary to constitute the offences alleged under the SC/ST Act are not disclosed against the appellants. The subsequent proceedings, therefore, cannot be sustained merely because cognizance has already been taken. The continuation of such proceedings, in the absence of the foundational ingredients of the offences, would amount to permitting the criminal process to continue despite the absence of a prima facie case.

In Rama Kant & Ors. Vs. State of U.P. & Anr. 2010 (5) ALJ (NOC) 611 (ALL), this Court held as under:-

In Dinesh Kumar Soni & Ors. Vs. State of U.P. & Anr. 2010 (8) ADJ 268, this Court held in para 4,7,8 as under:-

In Mukhtar Zaidi Vs. State of U.P. & Anr. 2024 SCC OnLine SC 553, the Supreme Court held in para 11 as under:-

The next question which arises for consideration is whether the learned Special Court was justified in rejecting the final report and directing that the protest application be registered as a complaint on the basis of the material accompanying the protest petition. It is well settled that upon submission of a final report, the Court has jurisdiction to consider the police report and the material collected during investigation and, in an appropriate case, may reject the final report. The informant may also file a protest petition. However, where the Court proposes to proceed on the basis of the allegations contained in the protest petition as a complaint, the protest petition must satisfy the essential requirements of a complaint and the procedure prescribed under Sections 200 and 202 Cr.P.C., as the case may be, has to be followed. The Supreme Court in Mukhtar Zaidi (supra), has reiterated the distinction between consideration of a protest petition in the context of a police report and treating such protest petition as an independent complaint. It has also been noticed that where the protest petition is treated as a complaint, the complainant and his witnesses are necessarily required to be examined in accordance with the procedure prescribed by law.

In the present case, the learned Special Court, while rejecting the final report, has observed that it had examined the case diary as well as the affidavits annexed with the protest petition. The order further shows that reliance was placed upon the averments made in the protest petition, the affidavit of the informant Saroj, the affidavits of Shivani alias Anamika Singh, Ranvir Singh, Subhash Saini, Rajendra Saini, Tejpal, Rawat and Jai Prakash, besides the photographs and newspaper cuttings. In our considered opinion, the approach adopted by the learned Special Court suffers from a fundamental infirmity. The Court was required to examine the material collected during investigation and record reasons as to why the conclusion arrived at by the Investigating Officer in the final report was not acceptable. Instead, extraneous materials have been taken into consideration without properly examining its evidentiary nature, relevance and the contradictions appearing therein.

The ‘photographs and newspaper cuttings’ placed along with the protest petition could not, by themselves, constitute substantive material for arriving at a judicial conclusion that the allegations made in the FIR stood prima facie established. No finding has been recorded as to what the photographs depict, how they relate to the alleged occurrence, or in what manner the newspaper reports constitute legally relevant material against the appellants. Likewise, a newspaper report is not substantive evidence of the facts stated therein. The learned Special Court, therefore, could not have relied upon such material, without anything more, for displacing the conclusion arrived at by the Investigating Officer.

Even the affidavits relied upon by the learned Special Court have not been subjected to any meaningful scrutiny. The protest petition itself contains material inconsistencies regarding the presence of the alleged witnesses at the place of occurrence. In paragraph 2 of the protest petition, the presence at the police station premises, which is stated to be the place of occurrence, appears to be confined to the informant, her daughter Shivani and Ranvir Singh, whereas in paragraph 7, Rajendra Saini, Subhash Saini, Rawat and Tejpal are also stated to have been present at the spot. This contradiction goes to the root of the question as to who were actually present at the alleged occurrence. Further, no specific time of occurrence is mentioned in the protest petition, although the affidavits subsequently furnish different versions regarding the time of occurrence. The protest petition also does not contain any clear and specific allegation regarding the particular casteist words or expressions allegedly used by any particular accused. The affidavit of Shivani alias Anamika Singh and that of Ranvir Singh also do not furnish any definite time of occurrence and contain substantially general allegations against the police personnel. No particular casteist slur or specific overt act attributable to any particular appellant has been clearly stated therein. The affidavit of Subhash Saini is also of a different nature. Subhash Saini, whose residential address is shown as Rajiv Nagar, Delhi Road, Hapur, has stated in paragraph 3 that he came to know from someone else about the incident allegedly occurring at about 2:30 p.m. on 18.06.2017. Thus, his affidavit does not disclose direct personal witnessing of the occurrence. A similar feature is noticeable in the affidavit of Rajendra Saini, who is also a resident of District Hapur, wherein the version is based upon information regarding the occurrence rather than a clear assertion of personal presence at the spot. The affidavit of Tejpal also requires careful scrutiny. He is shown to be a resident of Village Allipur, Police Station Kharkhoda, District Meerut. He has stated that his statement was not recorded by the Investigating Officer, whereas the record of investigation is required to be examined to determine the correctness of such assertion. More importantly, he has mentioned the time of occurrence as 1:30 p.m. on 18.06.2017. The affidavit of Rawat, also shown to be a resident of Allipur, contains a similar version. Jai Prakash, resident of Village Setkua, Police Station Kharkhoda, District Meerut, has also stated that his statement was not recorded by the Investigating Officer. Thus, the material placed before the learned Special Court itself discloses different versions as to the time of occurrence, with some witnesses referring to 1:30 p.m. and others to 2:30 p.m.; some claiming personal presence at the police station premises, while others admittedly narrating information received from someone else.

There is yet another circumstance which required consideration. In the protest petition itself, the informant has referred to the fact that a criminal case had been registered against her and that she had been taken into custody and sent to jail. This circumstance, by itself, may not determine the truth or otherwise of the allegations, but it was certainly a relevant circumstance requiring objective consideration while examining the protest petition and the conclusion of the Investigating Officer. The learned Special Court has not undertaken such an exercise.

It is thus apparent that the learned Special Court did not undertake a comparative or critical examination of the material contained in the case diary, the conclusion recorded by the Investigating Officer in the final report and the assertions subsequently made in the protest petition and the affidavits. The contradictions relating to the presence of witnesses, the time of occurrence, the source of knowledge of certain witnesses, the alleged non-recording of their statements under Section 161 Cr.P.C., and the absence of specific allegations against individual police personnel were material circumstances. They could not have been brushed aside merely by observing that the case diary and the affidavits had been perused.

The reliance placed on Mukhtar Zaidi (supra), by opposite party no.2 also does not advance the case of the complainant in the manner suggested. The said judgment recognises that, depending upon the nature of the protest petition and the material placed along with it, such material may be capable of consideration in an appropriate case; however, it does not dispense with the requirement of judicial scrutiny nor does it authorise a Court to mechanically treat every affidavit, photograph or newspaper cutting accompanying a protest petition as substantive material sufficient to reject a final report. Indeed, where the Court chooses to proceed treating the protest petition as a complaint, the statutory procedure applicable to a complaint has to be followed. The view taken by this Court in Vimlesh v. State of U.P. and another 2010 SCC OnLine All 482, also supports the principle that, after rejection of the final report, cognizance cannot mechanically be taken on the basis of affidavits and other material filed in support of the protest petition.

Consequently, the order of the learned Special Court does not disclose the requisite application of judicial mind to the material which formed the basis of the final report. The learned Court has substituted the allegations and inconsistent material contained in the protest petition and its annexures for a proper judicial examination of the investigation material. The impugned order, therefore, cannot be sustained merely on the ground that the protest petition was accompanied by affidavits of certain witnesses. The learned Special Court was required either to arrive at a ‘reasoned’ conclusion, on the basis of the legally relevant material in the case diary, as to why the final report deserved rejection, or, if it intended to proceed on the basis of the protest petition as a complaint, to follow the procedure prescribed under Sections 200 and 202 Cr.P.C. The course adopted in the present case reflects non-application of judicial mind and has resulted in an order which is legally unsustainable. Thus, affidavits accompanying a protest petition do not automatically become substantive evidence; their nature and relevance must be examined, and if the Court proceeds on them by treating the protest petition as a complaint, it is also required to be verified whether the facts of the complaint constitute such offence in light of Section 190 Cr.P.C., thereafter, the statutory complaint procedure must be followed.

In Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. (2010) 9 SCC 496, the Supreme Court held in para 47 as under:-

In Birla Corporation Limited Vs. Adventz Investments And Holdings Limited & Ors. (2019) 16 SCC 610, the Supreme Court held in para 29, 84 as under:-

Thus, in brief, the approach adopted by the learned Special Court is also contrary to the settled principles laid down by the Hon’ble Supreme Court in Kranti Associates (P) Ltd. (supra), wherein it has been held, in substance, that a judicial or quasi-judicial authority must record reasons in support of its conclusions; the reasons must demonstrate that relevant factors have been objectively considered and extraneous considerations have been disregarded; and recording of reasons operates as a restraint against arbitrary exercise of judicial power and facilitates judicial review. The said principle has been reiterated in Birla Corporation Ltd. (supra). In the present case, the impugned order merely records that the case diary and the affidavits alongiwith newspaper cuttings, photographs filed with the protest petition have been perused and, without analysing their contents, reliability, relevance or the material contradictions emerging therefrom, the final report has been rejected and the protest petition has been directed to be registered as a complaint. The order does not disclose what particular material in the case diary was found insufficient, what material was found reliable, or why the conclusion of the Investigating Officer was unacceptable. More importantly, the learned Special Court has relied upon ‘photographs and newspaper cuttings’ without recording their relevance or evidentiary value and has failed to notice the material contradictions regarding the presence of witnesses and the time and manner of the alleged occurrence. Thus, the mandatory requirement of objective consideration of relevant material and recording of reasons has not been complied with. The impugned order, being bereft of reasons and disclosing no meaningful application of judicial mind to the material placed before the Court, cannot be sustained in law. The order is, therefore, not a reasoned judicial determination but merely a conclusion unsupported by reasons, and consequently suffers from manifest non-application of judicial mind.

Section 197 Cr.P.C. provides as under:-

In Matajog Dobey Vs. H.C. Bhari (1955) 2 SCC 388, the Supreme Court held in para 15, 18 as under:-

In Abdul Wahab Ansari Vs. State of Bihar & Anr. (2000) 8 SCC 500, the Supreme Court held in para 8,9 as under:-

In State of Orissa through Kumar Raghvendra Singh & Ors. Vs. Ganesh Chandra Jew (2004) 8 SCC 40, the Supreme Court held in para 11, 12 as under:-

In D. Devaraja Vs. Owais Sabeer Hussain (2020) 7 SCC 695, the Supreme Court held in para 74 as under:-

In Amod Kumar Kanth Vs. Association of Victim of Uphaar Tragedy & Anr. (2023) 16 SCC 239, the Supreme Court held in para 22 as under:-

There is yet another fundamental infirmity in the impugned order. Admittedly, all the appellants/accused persons were police personnel and were posted at Police Station Kharkhoda, District Meerut, at the relevant time. The alleged occurrence dated 18.06.2017 is itself stated to have taken place within the premises of the same police station. It is further not disputed that, in connection with the incident of the same date, Case Crime No. 299 of 2017 was registered against Saroj, the informant of the present Case Crime No. 530 of 2017, under Sections 323, 332, 353, 504 and 506 IPC, and she was taken into custody and sent to jail. The said criminal case was registered by Lady Constable No.2879, Bhuvanesh Kumari. Thus, the allegations in the present case, the presence of the appellants at the police station, their official status and the circumstances in which the alleged occurrence took place have an apparent and direct nexus with the discharge of their official functions. In such circumstances, the learned Special Court was required, at the stage of considering the final report and before proceeding to take cognizance or directing the protest petition to be treated as a complaint, to examine whether the alleged acts were committed while acting or purporting to act in the discharge of official duty and, consequently, whether previous sanction under Section 197 Cr.P.C. was a condition precedent for taking cognizance.

The law in this regard is well settled. In brief, in Matajog Dobey (supra), the Constitution Bench explained that the object of Section 197 Cr.P.C. is to afford protection to public servants against vexatious criminal proceedings in respect of acts having a reasonable connection with the discharge of official duty. In Abdul Wahab Ansari (supra), the Supreme Court emphasised that where the statutory protection applies, the Court is prohibited from taking cognizance without previous sanction and that the question of sanction is required to be considered at the earliest stage. In State of Orissa through Kumar Raghvendra Singh (supra), it was reiterated that the protection extends to an act which has a reasonable nexus with the discharge of official duty, even where the public servant is alleged to have exceeded the limits of such duty; the relevant test is not whether the act was lawful, but whether there is a reasonable connection between the act complained of and the official duty. The principle has been reiterated in D. Devaraja(supra), and in Amod Kumar Kanth (supra). Tested on the aforesaid principles, the omission on the part of the learned Special Court assumes significance. The Court was not required to finally determine the guilt or innocence of the appellants at this stage; nevertheless, it was required to apply its judicial mind to the statutory bar contained in Section 197 Cr.P.C. and to determine whether the alleged acts had a reasonable nexus with the official functions being performed by the police personnel at Police Station Kharkhoda on 18.06.2017. The fact that another criminal case arising out of the same incident had already been registered against the informant herself and that the alleged occurrence and the registration and investigation of the said case all arose within the police station premises were circumstances directly relevant to such determination. The impugned order, however, contains no consideration whatsoever of Section 197 Cr.P.C., no finding as to whether the alleged acts were connected with official duty, and no finding as to whether previous sanction had been obtained from the competent authority.

This omission is not a mere procedural irregularity. Where Section 197 Cr.P.C. applies, previous sanction is a condition precedent to the Court taking cognizance of the offence. Therefore, before converting the protest petition into a complaint and proceeding against the appellants, the learned Special Court was required to satisfy itself whether the statutory requirement of previous sanction had been complied with. The question could not have been completely ignored and left unexamined. the Special Court was first required to examine whether the alleged acts had a reasonable nexus with official duty and, if so, whether previous sanction existed. In the absence of any consideration of this mandatory statutory safeguard, the impugned order suffers from non-application of judicial mind and cannot be sustained in its present form.

Section 14(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 provides as under:-

In Gangula Ashok & Anr. Vs. State of A.P. (2000) 2 SCC 504, the Supreme Court held in para 8,9 as under:-

There is another serious infirmity in the proceedings before the learned Special Court. From the statement made by learned counsel appearing for opposite party no. 2, which is also supported by the statement annexed with the counter affidavit, it appears that after treating the protest petition as a complaint, the learned Special Court proceeded to record evidence under Section 244 Cr.P.C. and a witness has already been examined in this case. The accused-appellants also, moved application seeking discharge under Section 245 Cr.P.C., which was rejected by the learned Special Court on merit. The aforesaid course of proceedings clearly indicates that the learned Special Court adopted the procedure applicable to a ‘Magistrate trying a warrant case instituted otherwise than upon a police report’. Such procedure was legally impermissible in the facts of the present case. Thus, The legal position in this regard stands settled by the Hon’ble Supreme Court in Gangula Ashok and another (supra), The Supreme Court held that merely because a Court of Session is designated as a Special Court under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, it does not cease to be a Court of Session. The trial before such Special Court has to be conducted in accordance with the provisions contained in Chapter XVIII of the Code of Criminal Procedure. The Court specifically distinguished between an inquiry and a trial and held that the Special Court is constituted to conduct the trial as a Court of Session.

The aforesaid principle has direct application to the present case. Once the matter was before the Special Court constituted under the SC/ST Act and the Court was required to proceed as a Court of Session, the provisions contained in Sections 244 and 245 Cr.P.C., which form part of the procedure applicable to warrant cases instituted otherwise than on a police report before a Magistrate, could not have been adopted as the procedure for trial by the Special Court. The appropriate provisions governing discharge/charge before a Court of Session are Sections 227 and 228 Cr.P.C. The distinction is substantive and not merely one of nomenclature. Under Section 227, the Sessions Court considers the record of the case and the documents submitted therewith and, after hearing the accused and the prosecution, may discharge the accused if it considers that there is not sufficient ground for proceeding against him. The subsequent course adopted by the learned Special Court therefore further demonstrates that the Court proceeded on an erroneous assumption regarding the procedure applicable to the case. Having recorded evidence under Section 244 Cr.P.C., the Court also entertained and rejected application under Section 245 Cr.P.C., instead of examining the question of discharge in accordance with Section 227 Cr.P.C. This was not a case where the learned Special Court merely referred to an incorrect provision while otherwise following the correct statutory procedure. The record indicates that the entire procedural course was adopted on the footing that the Court was functioning as a Magistrate in a warrant case, whereas, in law, it was required to proceed as a Court of Session under Chapter XVIII Cr.P.C.

The distinction assumes greater significance because the procedure under Section 227 Cr.P.C. requires the Sessions Court to examine the record of the case and the documents submitted therewith, along with the submissions of the accused and the prosecution, for determining whether sufficient ground exists for proceeding against the accused. Thus, the statutory scheme of ‘trial before court of Session’ does not contemplate that the witnesses must first be subjected to the procedure of recording prosecution evidence under Section 244 Cr.P.C. or the question of discharge can be considered under Section 245 Cr.P.C. The learned Special Court, by proceeding under Sections 244 and 245 Cr.P.C., has consequently deprived the appellants of consideration of their case for discharge in the manner specifically prescribed for a Court of Session. Thus, the learned Special Court was required to proceed in accordance with Chapter XVIII Cr.P.C. and to consider the question of discharge, if raised, under Section 227 Cr.P.C. The impugned course of proceedings, therefore, suffers from a fundamental procedural error and reflects non-application of judicial mind to the character and jurisdiction of the Special Court under the SC/ST Act.

In Pradeep S. Wodeyar Vs. State of Karnataka (2021) 19 SCC 62, the Supreme Court held in para 47, 48 as under:-

It may also be noticed that the defects in the impugned order cannot be treated as a mere error, omission or irregularity curable under Section 465 Cr.P.C. and in the light of Pradeep S. Wodeyar (supra). In the present case, the challenge raised by the appellants is at the very threshold of the criminal proceeding and before any trial has commenced. The impugned order has rejected the final report and has directed that the protest petition be registered as a complaint, thereby setting the criminal process in motion against the appellants. The appellants have specifically raised the question of the applicability of Section 197 Cr.P.C., the alleged acts having been attributed to police personnel who were admittedly posted at Police Station Kharkhoda and were performing official functions at the relevant time. Thus, the question whether the alleged acts had a reasonable nexus with official duty and whether previous sanction was a condition precedent for taking cognizance was required to be judicially examined before proceeding against the appellants.

The learned Special Court, however, has not considered Section 197 Cr.P.C. at all. It has neither recorded a finding that the alleged acts were wholly unconnected with the discharge of official duty nor examined whether the requirement of previous sanction stood satisfied. This omission assumes greater significance because the Court has simultaneously relied upon the protest petition, affidavits, photographs and newspaper cuttings and, on that basis, rejected the final report and proceeded to convert the protest petition into a complaint without any reason or legal basis. The failure to examine a statutory safeguard which may constitute a condition precedent to the initiation of criminal proceedings cannot, in the facts of the present case, be characterised as a harmless or inconsequential irregularity. Therefore, there is no question of permitting a defective order to survive merely on the ground of delay or on the assumption that no prejudice has been caused. The prejudice is inherent in compelling the appellants to face a criminal proceeding due to considering extraneous materials in order to treat Final Report into complaint and non compliance of mandatory legal provisions.

Thus, the present case does not involve a mere misdescription, accidental omission or curable procedural irregularity. The impugned order reflects failure to consider a statutory provision having a direct bearing upon the jurisdiction to proceed against the appellants, coupled with non-application of judicial mind to the material relied upon for rejecting the final report. Such an omission, particularly when challenged at the threshold and when it affects the valuable statutory protection available to public servants, has occasioned failure of justice and cannot be saved by invoking Section 465 Cr.P.C. The impugned order, therefore, calls for interference in exercise of the appellate jurisdiction of this Court.

In view of the legal and procedural issues noticed hereinabove, the following guidelines are issued for due observance by all the criminal courts in the State of Uttar Pradesh, subject to the statutory provisions applicable to the case:

For the reasons recorded hereinabove, this Court is of the considered opinion that the impugned order of cognizance cannot be sustained in law. The Investigating Officer, after investigation, had submitted a Final Report. The learned Special Court, instead of considering the material collected during investigation and recording a reasoned finding as to why the Final Report was not acceptable, proceeded to treat the protest petition as a complaint substantially on the basis of affidavits of witnesses, photographs and newspaper cuttings. Such material could not have been made the foundation for taking cognizance in the manner adopted by the learned special Court, particularly when the affidavits themselves contain material contradictions and the order does not disclose any proper consideration of the case diary or the reasons for disagreeing with the investigation.

The learned Special Court has further adopted the procedure applicable to a complaint case before a Magistrate, including recording of statements under Section 244 Cr.P.C. and consideration of an application under Section 245 Cr.P.C. etc. The impugned order, therefore, suffers from a fundamental procedural error apart from non-application of judicial mind on the part of presiding officer of special court SC/ST Act.

There is also no consideration in the impugned order of the objection arising under Section 197 Cr.P.C. Without examining whether the alleged acts had a reasonable nexus with the discharge of official duty and whether the statutory protection under Section 197 Cr.P.C. was attracted, the learned Special Court proceeded to take cognizance. Such omission assumes significance in the facts of the present case and renders the order legally unsustainable.

The impugned order is also wholly ‘non-speaking’ and does not disclose the reasons which persuaded the learned Special Court to reject the Final Report and to proceed against the appellants. A judicial order taking cognizance must reflect application of judicial mind to the material placed before the Court. The Court cannot substitute reasons by merely observing that it has perused the protest petition and accompanying material. The impugned order, therefore, fails to satisfy the basic requirement of a reasoned judicial order.

This Court has also taken into consideration the fact that the allegations in the protest petition do not contain reliable, specific and individual allegations disclosing the essential ingredients of the offences under the SC/ST Act against each of the appellants.

In view of the cumulative effect of the aforesaid circumstances, this Court is of the considered opinion that permitting the proceedings to continue against the appellants would amount to an abuse of the process of law. The impugned order of cognizance, therefore, cannot be permitted to stand.

Accordingly, the appeal is allowed. The impugned order dated 06.10.2018 passed by the learned Special Judge, SC/ST Act, Meerut, in connection with Crime No. 530 of 2017, Police Station Kharkhoda, District Meerut, whereby the Final Report was rejected and the protest petition was treated as a complaint and cognizance was taken against the appellants, is hereby set aside.

Consequently, all the further proceedings arising out of the aforesaid order of cognizance against the appellants are also quashed and set aside. The appellants shall stand discharged from all the proceedings arising from the impugned order.

Let a copy of this judgment be transmitted within 48 hours to the court concerned by Fax/e-mail through District & Session Judge concerned for information and necessary compliance.

The Registrar General of the High Court of Judicature at Allahabad shall circulate a copy of this judgment to all the Judicial Officers in the State of Uttar Pradesh for information, guidance and strict compliance in accordance with law.

The Registrar General of this Court shall also forward a copy of this judgment to the Director, Judicial Training and Research Institute, Lucknow, U.P. for its consideration and for issuing, appropriate guidance, to the judicial officers regarding the procedure and legal principles as laid down herein.