To constitute a prima facie case of negligence of duty by public servant, proviso to section 4(2) of SC/ST Act contemplates administrative enquiry & recommendations: Supreme Court
Justices M.M. Sundresh & S.V.N. Bhatti [17-05-2024]

Read Order: THE STATE OF GNCT OF DELHI AND OTHERS v. PRAVEEN KUMAR @ PRASHANT [SC- CRIMINAL APPEAL NO. 349 OF 2021]

LE Correspondent

New Delhi, June 19, 2024: The Supreme Court recently clarified that while considering a complaint alleging that a public servant has wilfully neglected the duties assigned to him by the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, the Magistrate before proceeding further to keep his decision conforming to section 4(2) read with the proviso, has to call for a report/recommendation from the Department against the named public servant.

The incident is of the year 2018 when the respondent lodged a complaint before the Station House Office, P.S. Fatehpur Beri, New Delhi (SHO). The complaint narrated alleged offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (Act of 1989) against Preeti Agarwalla, Anush Agarwalla, Shikha Mundkur, Amir Pasrich, Shivani Pasrich and Ameera Pasrich (Appellant Nos. 1 to 6, respectively, in Criminal Appeal No. 348 of 2021). The respondent filed an application under section 156(3), read with section 200 of the Code of Criminal Procedure, 1973 (CrPC), before the Chief Metropolitan Magistrate to direct registration of an FIR. 

The Respondent filed a Criminal Miscellaneous Application which dealt with the alleged commissions and omissions by public servants in the discharge of the duties and functions under the Act of 1989. The application alleged that the public servants neglected the duties and functions assigned to them by the Act of 1989, viz. register an FIR on the information lodged on 29.04.2018, investigate the allegations and take prompt and timely action. The respondent filed the application under section 4 for the registration of an FIR against the public servants. The respondent, aggrieved by the rejection of prayer, filed an appeal under section 14A before the High Court of Delhi, praying to call the records for perusal, citing the imminent threat of acid attack again.

The State and other respondents approached the Top Court after the 

Delhi High Court held that the then SHO of Police Station Fatehpur Beri was liable to be prosecuted under section 4(2)(b) of SC & ST (Prevention of Atrocities) Act, 1989 as amended up-to-date.

On a perusal of sub-sections (1), (2) and (3) of section 4, the Division Bench comprising Justice M.M. Sundresh & Justice S.V.N. Bhatti explained that the commission or omission by a public servant has penal consequences and the willful neglect is recommended by an administrative enquiry and the cognizance can be taken thereafter. The recommendation of administrative enquiry on alleged failure of duty or function by a public servant would make the neglect of an offence clear and the cognizance of such an offence is legal. The competent court can take cognizance of the commission or omission of any duty specified under sub-section (2) of section 4 when made along with the recommendation and direct legal proceedings. “Therefore, to constitute a prima facie case of negligence of duty, the proviso to subsection (2) of section 4 contemplates an administrative enquiry and recommendations”, the Bench added.

It was further opined by the Bench that keeping in perspective, the language/scheme of section 4, and on the literal interpretation of sub sections (1), (2) and (3) of section 4, it would be legally permissible that the jurisdiction for infraction of sub-section (2) of section 4 is attracted only on the recommendation of the administrative enquiry and then, the cognizance under sub-section (3) of section 4 is ordered.

The Bench said, “...we hold that the Magistrate would have the accusation of a party and view of the Department while deciding to take cognizance of the offence or not. At the cost of repetition stated that, the purpose of an administrative enquiry is to find out the conduct of a public servant against whom allegations of failure of duty or function are made and the omission or commission is bonafide or willful.”

The Delhi High Court had adjudicated the alleged omission or commission by the public servants, and a direction was issued for penal action. Upon due consideration of the method and manner of taking cognizance of an offence against the public servant under section 4 of the Act of 1989, the Bench noted that the impugned judgment, for all purposes, adjudicated the alleged dereliction of duty by the named public servants and directed penal prosecution. These directions were not in conformity with the mandate of law. 

As per the Bench, the Metropolitan Magistrate, keeping in perspective the binding precedents under section 156(3) of the CrPC, applied his discretion to the circumstances of the case and concluded that no offence was made out in the complaint.

Allowing the Criminal Appeal, the Bench held, “In our considered view, the decision of the Metropolitan Magistrate is correct and unassailable in the circumstances of the case. Therefore, the impugned judgment, for the above reasons and deliberation, is unsustainable and contrary to the proviso to section 4(2) of the Act of 1989. Hence, the impugned judgment is set aside.”