IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.11.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.23515 of 2006 C.Sathiyanathan ...Petitioner/Sole Accused Vs. Veeramuthu ...Respondent/Complainant This Criminal Original Petition has been filed under Section 482 of Criminal Procedure Code against an Order of the lower appellate court namely, Judicial Magistrate No.2, Mettur dated 16.06.2006 made in P.R.C.No.14/2006. For Petitioner : Mr.M.V.Karunakaran For Respondent : Mr.S.Packiaraj O R D E R This criminal original petition has been filed invoking the inherent powers of the High Court under Section 482 of Criminal Procedure Code to quash the criminal proceedings initiated against the petitioner herein in PRC No.14 of 2006 on the file of the learned Judicial Magistrate No.2, Mettur based on a private complaint preferred by the respondent herein under Section 200 of the Code of Criminal Procedure. 2. The facts leading to the filing of the present criminal original petition can be stated thus:- a) The respondent herein preferred a private complaint against the petitioner herein alleging that the petitioner had committed offences punishable under Sections 464, 466 and 471 of the Indian Penal Code and an offence under the supposed Section 3(1)(VIII)(IX) (X) of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989. The following are the allegations found in the complaint. "An extent of 0.86.0 hectares of land comprised in Survey No.113/2 in Veerakkalputhur Village, Mettur Taluk, Salem District within the limits of Karumalaikoodal Police Station had been purchased by the mother of the respondent herein (complainant) in and by a sale deed dated 05.05.1959 and there after she was in possession and enjoyment of the same till she gave it to the respondent/complainant under a registered gift settlement deed dated 09.05.2003. While so, the petitioner herein/accused, the then https://hcservices.ecourts.gov.in/hcservices/ Village Administrative Officer of Veerakkalputhur, illegally entered the name of Papa, the mother of the petitioner, as the owner of the said land in all the revenue records like Chitta, Adangal, etc. When the respondent herein/complainant came to know the said fact, he along with one Ganamurthy went to the residence of the petitioner herein/accused and met him on 30.04.2006 at about 7.00 a.m. During the said meeting, the respondent herein/complainant questioned the petitioner herein/accused as to the propriety of his act of making false entries in the revenue records in the name of his mother. The petitioner/accused who did not deny the said allegation, simply offered a sum of Rs.1,00,000/- for the said land. As the respondent/complainant declined the offer and demanded at least Rs.15,00,000/- as consideration for the said land, the petitioner/accused humiliated and insulted the respondent herein / complainant referring to his caste in the presence of others." b) The above said complaint was taken on file by the learned Judicial Magistrate No.2, Mettur and after recording sworn statements of the respondent herein/complainant, his son Ganamurthy and one Ayyadurai, summons were issued to the petitioner herein/accused. As the learned Judicial Magistrate No.2, Mettur was of the opinion that one of the offences alleged, namely an offence punishable under the provisions of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989, was triable exclusively by a Court of Sessions (Special Judge for trial of offences under the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989, the complaint was taken on file as PRC No.14 of 2006. The above said order of the learned Judicial Magistrate taking the complaint on file as PRC No.14 of 2006 is sought to be quashed in this petition, invoking the inherent powers of this court under Section 482 of the Code of Criminal Procedure, on various grounds set out in the criminal original petition. 3. This court heard the submissions made by Mr.K.V.Karunakaran and that of Mr.S.Packiaraj, learned counsel for the respondent. The materials available on records were also perused. 4. Mr.M.V.Karunakaran, learned counsel for the petitioner advanced an argument to the effect that the criminal proceedings initiated against the petitioner herein/accused based on the private complaint of the respondent herein/complainant was unsustainable in law and the same was liable to be quashed for the following reasons:- i) there was total non-application of mind by the learned Judicial Magistrate in taking cognizance of the offences alleged in the complaint. ii) the date, month and year of the commission of offences punishable under Indian Penal Code alleged in the complaint were not furnished by the respondent herein/complainant and hence the cognizance of the said offences was irregular; https://hcservices.ecourts.gov.in/hcservices/ iii) the offence punishable under the provisions of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 allegedly committed on 30.04.2006 should not have been clubbed with the offences punishable under the provisions of the Indian Penal Code, which according to the materials found in the complaint should have been committed, if at all they were true, between 09.05.2003 and 30.04.2006 (and) iv) no private complaint could be entertained in respect of an offence punishable under the provisions of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989. 5. Per contra, Mr.S.Packiaraj, learned counsel for the respondent contended that the entries made unlawfully in the revenue records by the petitioner herein/accused came to the knowledge of the respondent herein/complainant only prior to the occurrence dated 30.04.2006; that besides giving petitions to the Collector, Revenue Divisional Officer and Tahsildar, the respondent herein/complainant brought it to the notice of the petitioner herein/accused on 30.04.2006 and questioned him regarding the propriety of his act; that the act of effecting false entries in the revenue records relating to the property and the insult made by the petitioner herein/accused on 30.04.2006 constituting the offences alleged in the complaint were committed in the course of one and the same transaction and that hence there was no defect or infirmity in clubbing all the said offences in one and the same complaint. The learned counsel for the respondent contended further that Rules 5 to 7 of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Rules, 1995 simply prescribed the procedure as to how the complaint is to be recorded by the police and the manner in which such a complaint regarding commission of offences under the provisions of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989, should be investigated and that the same shall not be interpreted in such a way to rule out the application of the provisions of the Criminal Procedure Code relating to private complaint. It is the further contention of the learned counsel for the respondent that since an offence punishable under Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 was exclusively triable by a special court designated under the Act which is essentially a Sessions Court, the only course available to the learned Judicial Magistrate on receipt of a complaint alleging commission of offences including one punishable under the provisions of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 was to register the same as PRC, of course after being satisfied with the prima-facie nature of the case and after taking cognizance of such offence, the Magistrate could not have even directed an investigation to be made by a police officer. 6. This court gave its anxious considerations to the respective submissions made by the learned counsel appearing on either side. The materials available on record were also perused. https://hcservices.ecourts.gov.in/hcservices/ 7. The point that arises for consideration is "whether the order of the learned Judicial Magistrate No.2, Mettur taking the private complaint of the respondent herein on file and registering it as a PRC has to be quashed exercising the inherent powers of this court under Section 482 of Criminal Procedure Code?" 8. The learned counsel for the petitioner, in support of his contention that there was non-application of mind on the part of the learned Judicial Magistrate in taking cognizance of the offences alleged in the compliant and registering the same as a PRC, submitted that none of the provisions of the Indian Penal Code cited in the complaint and in the impugned order of the learned Judicial Magistrate taking cognizance of the offences would be attracted by the facts alleged in the complaint; that one of the provisions cited in the complaint as well as in the order of the learned Judicial Magistrate was only a provision explaining an offence and not a penal provision prescribing punishment and that hence the said singular fact alone would be enough to show that the learned Judicial Magistrate acted mechanically without application of mind. In the above submissions, the learned counsel in the above said submissions referred to Section 464 Indian Penal Code cited in the complaint as well as the order of the learned Judicial Magistrate. 9. Section 463 of Indian Penal Code simply defines the offence of forgery. As per the said provision whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, is said to commit forgery. Making a false document or electronics record is defined as forgery in Section 464. Neither section 463 nor Section 464 of Indian Penal Code prescribes any penalty. A statutory provision defining a term or offence shall not be treated as the penal provision. On the other hand Section 465 alone is the penal provision making forgery a punishable offence. The learned Judicial Magistrate, in the order taking cognizance of the case, has stated that one of the offences alleged was punishable under Section 464 IPC. Therefore, to that effect, the contention of the learned counsel for the petitioner that there was non-application of mind on the part of the learned Judicial Magistrate has got substance in it. 10. So far as the other two offences punishable under the Indian Penal Code, namely offences punishable under Sections 466 and 471 of IPC, are concerned, in fact there are allegations in the complaint to the effect that the petitioner accused had manipulated the revenue records and made entries therein showing the name of his mother as the owner of the property comprised in Survey No.113/2 in Veerakkalputhur village. However, there is absence of clear cut averment in the complaint to the effect that the said forged documents were used as genuine documents. Though the allegations to https://hcservices.ecourts.gov.in/hcservices/ the effect that the petitioner had made false entries in Chitta, Adangal and Patta would attract the penal provision found in Section 466 of IPC, averments to attract the penal provision of Section 471 IPC are lacking. Even regarding the offence under Section 466, there is lack of averment regarding the date on which the false entries were made in the records or the date on which the fact that such false entries had been made by the petitioner came to the knowledge of the respondent / complainant. Though the complainant has chosen to aver that he gave complaints to the revenue officials, namely District Collector, Revenue Divisional Officer and Tahsildar, for necessary relief, he has failed to state the date on which such petitions were submitted by him to the said revenue authorities. Under such circumstances, this court has to accept the contention of the learned counsel for the petitioner that there was want of materials to make out a prima-facie case for the offence of forgery of public record and using such forged document as genuine and that there was non-application of mind on the part of the learned Judicial Magistrate in this regard also. 11. The next question to be considered is whether order of the learned Judicial Magistrate taking cognizance of the case for an offence punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and registering the case as PRC can stand the scrutiny of this court. Of course it is true that the complaint contains necessary allegations to the effect that on a particular date, namely on 30.04.2006, at about 7.00 a.m the respondent met the petitioner in his residence and questioned him about the propriety of his act in changing the entries in the revenue records in the name of his mother; that at the moment he was insulted by the petitioner referring to his caste and that the petitioner being a member of a scheduled caste and the respondent not being a member of a scheduled caste his act of insulting the petitioner in the presence of others in the name of his caste capable of attracting provisions of Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989. But it is pertinent to note that the provision of law has been incorrectly quoted in the complaint as 3(i)(viii)(ix)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989. There is no provision in the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 as 3(i)(viii)(ix)(x). There are provisions as 3(i)(viii), 3(i)(ix) and 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989. The allegations found in the complaint attract Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989. But the allegations are not sufficient to attract section 3(i)(viii) and 3(i)(ix). It is a well-known principle that the fact that the complainant has quoted a wrong provision or has not quoted any provision of law will not be enough to reject the complaint and the police or the Magistrate receiving the complaint shall take it on file referring to proper provisions of law. In this case, though the respondent complainant might have committed a mistake in quoting a wrong provision, in fact a non-existing provision, the learned Judicial Magistrate should have applied his mind and taken https://hcservices.ecourts.gov.in/hcservices/ cognizance of the case under the correct provision of law. But unfortunately the very same mistake is found in the order of the learned Judicial Magistrate taking cognizance of the case also. The same will, as rightly pointed out by the learned counsel for the petitioner, show the non-application of mind on the part of the learned Judicial Magistrate in taking cognizance of the case. Hence the contention that the order of the learned Magistrate in taking cognizance of the case stands vitiated because of non-application of mind has got to be countenanced. 12. It is the further contention of the learned counsel for the petitioner that the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989, being a special enactment, shall prevail over the general law, namely the Code of Criminal Procedure; that a special procedure has been described for receiving complaint in respect of offences punishable under the said Act and for the investigation of the same; that the said procedure is found in Rules 5 to 7 of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Rules, 1995; that as per the procedure a complaint regarding commission of an offence punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 has to be lodged with the police where upon the same shall be investigated upon by an investigating officer appointed by the Government or Director General of Police or the Superintendent of Police as per Rule 7 of the above said Rules shall be a police officer not below the rank of a Deputy Superintendent of Police; that in view of the said procedure prescribed, the private complaint procedure found in the Code of Criminal Procedure is not available to the respondent/complainant in respect of an offence punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act and that hence the order of the learned Judicial Magistrate taking cognizance of the offence under the provisions of the said Act based on the private complaint of the respondent complainant is liable to be quashed. 13. The relevant provisions to be considered for a decision regarding applicability of the private complaint procedure found in the Code of Criminal Procedure are:- i) Section 4 of the Code of Criminal Procedure, ii) Section 20 of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 And iii)Rules 5, 6 and 7 of Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Rules, 1995. Section 4 of the Code of Criminal Procedure reads as follows: 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 https://hcservices.ecourts.gov.in/hcservices/ otherwise dealt with according to the provisions hereinafter contained." Sub-clause (2) directs that " All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions (meaning provisions of the Code of Criminal Procedure) 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." A reading of the said provision will make it clear that the provisions of the Code of Criminal Procedure will apply to cases of special enactments, provided there is no provision excluding the application of the provisions of the code. 14. Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 provides for the designation of one of the sessions court in each district to be the special court to try offences under the act. The Act does not contain any provision regarding the manner in which an offence under the said Act has got to be taken cognizance of. But as per Section 23, the provision giving rule making power to the central government, the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Rules, 1995 have been framed. Rules 5 to 7 deal with the information to the police, spot inspection by officers and investigation by the investigating officer. Rule 5 is the reproduction of Section 154 of Criminal Procedure Code with a slight variation in clause 3. As per clause 3 of Section 154 of Criminal Procedure Code, when the substance of the information given to the police officer in charge of a police station, is sent to the Superintendent of Police concerned by the person aggrieved by the refusal of the former (officer in charge of the police station) to record such information, the Superintendent of Police shall either investigate the case himself or direct investigation to be made by any police officer subordinate to him in the manner provided by the code under sub clause 3 of Rule 5 of Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Rules, 1995 under such circumstances, the Superintendent of Police shall after investigation 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 police station concerned to enter the substance of that information to be entered in the book to be maintained by that police station. The investigation under Clause 3 of Rule 5 shall be a preliminary one resulting in the registering of the FIR. Thereafter investigation has to be done in accordance with Rule 7. Rule 6 of the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Rules, 1995 is somewhat similar to Section 174 of the Code of Criminal Procedure dealing with inquest. Rule 7 of the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Rules, 1995 says: 1) who shall investigate an offence committed under the Act, 2) the authorities competent to appoint the https://hcservices.ecourts.gov.in/hcservices/ investigating officers and 3) the qualities and qualifications of the officer to be appointed as investigating officer. It also provides for the time limit within which the investigation of such offences should be completed. Rule 7 reads as follows:- " An offence committed under the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Act, 1989 shall be investigated by a police officer not below the rank of Deputy Superintendent of Police appointed by the State Government or Director General of Police or 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." Neither Rule 5 nor Rule 7, nor any other rule deals with the manner in which an offence under the provisions of the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Act, 1989 shall be taken cognizance of by the court. Rule 7 simply deals with the rank of the police officer and the qualities of the police officer to be appointed as investigating officer. There is nothing to indicate that the applications of the provisions of the Code of Criminal Procedure dealing with the cognizance of the offence is ruled out. 15. Previously there was a lot of controversy as to whether a special court designated under Section 7 of the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Act, 1989 could take cognizance of an offence punishable under the act without the case being committed to it by a Magistrate. The controversy was set at rest by the Hon'ble Apex court in Gangula Ashok vs. State of Andhra Pradesh reported in AIR 2000 SC 740. In the said case, it has been held that a special court designated under Section 14 of the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Act, 1989 is essentially a Sessions court and hence it cannot take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a Magistrate. The reason assigned is that neither in the Code of Criminal Procedure nor in the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Act, 1989 there is any provision to the effect that the special court can take cognizance of the offence as a court of original jurisdiction. The said judgment is referred to show that the procedure found in the Code of Criminal Procedure shall be applicable when there is no special procedure prescribed in the Scheduled Castes and Scheduled Tribes (prevention of atrocities) Act, 1989. Similarly while interpreting Section 4(2) of the Code of Criminal Procedure with reference to a case registered on a private complaint for an offence under the Prevention of Corruption Act, the Hon'ble Supreme Court in A.R.Antulay Vs. Ramdas Sriniwas Nayak and Another reported in 1984 (2) SCC 500 has held that a reading of the concerned provision makes it clear that subject to the provisions in the other enactment, all offences under the said law shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code of Criminal Procedure. https://hcservices.ecourts.gov.in/hcservices/ It has also been held that if the special enactment contains any provision contrary to the provisions of the Code, such other provision in the special enactment shall apply in the place of the particular provision of the Code and that if there is no such contrary provision in the other (special) enactment, then the provisions of the Code of Criminal Procedure shall apply. 16. In "Directorate of Enforcement vs. Deepak Mahajan and Another reported in (1994) 3 SCC 440, the Supreme court while dealing with the power of the magistrate to remand an accused in a case under the FERA and Customs Act made the following observations:- " Section 4(2) of the Code corresponds to Section 5 (2) of the old Code. Section 26(b) of the Code corresponds to Section 29 of the old Code except for a slight change. Under the present Section 26(b) any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court and when no court is mentioned in this behalf, may be tried by the High Court or other court