Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – Section 4(2) – The Olympic Riding and Equestrian Academy (OREA) is facing disputes over allegations of caste-based discrimination and other complaints filed against trainees and administrators – The main issue is whether the complaints filed under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, were substantiated and whether FIRs should be registered – The appellants argued that the complaints were not made in public view and lacked specific details, thus not constituting offenses under the Act of 1989 – The respondent claimed that the complaints were ignored by the police and not investigated as mandated by the Act of 1989 – The Supreme Court allowed the criminal appeal, upholding the Metropolitan Magistrate’s order that dismissed the application for FIR registration under the Act of 1989 – The court found the allegations vague, did not specify the offenses, and were not made in public view – The impugned judgment of the High Court directing the registration of an FIR was set aside.

2024 INSC 437

SUPREME COURT OF INDIA

DIVISION BENCH

PRITI AGARWALLA AND OTHERS — Appellant

Vs.

THE STATE OF GNCT OF DELHI AND OTHERS — Respondent

( Before : M. M. Sundresh and S.V.N. Bhatti, JJ. )

Criminal Appeal No (S). 348 of 2021

Decided on : 17-05-2024

A. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – Section 4(2) – The Olympic Riding and Equestrian Academy (OREA) is facing disputes over allegations of caste-based discrimination and other complaints filed against trainees and administrators – The main issue is whether the complaints filed under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, were substantiated and whether FIRs should be registered – The appellants argued that the complaints were not made in public view and lacked specific details, thus not constituting offenses under the Act of 1989 – The respondent claimed that the complaints were ignored by the police and not investigated as mandated by the Act of 1989 – The Supreme Court allowed the criminal appeal, upholding the Metropolitan Magistrate’s order that dismissed the application for FIR registration under the Act of 1989 – The court found the allegations vague, did not specify the offenses, and were not made in public view – The impugned judgment of the High Court directing the registration of an FIR was set aside.

B. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – Administrative Enquiry as a condition precedent – The Court held that the requirement of an administrative enquiry under the proviso to section 4(2) of the Act, 1989 (the Act of 1989) is a condition precedent for taking cognizance of an offence against a public servant – This means that before initiating legal proceedings against a public servant under section 4(2) of the Act, an administrative enquiry must be conducted to determine whether the public servant’s conduct was bonafide or willful.

C. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – No Cognizance without Administrative Enquiry – The Court held that without the recommendation of an administrative enquiry, a court cannot take cognizance of an offence under section 4(2) of the Act of 1989 – This means that if an administrative enquiry has not been conducted or its recommendation has not been obtained, a court cannot proceed with the prosecution of a public servant under the Act.

D. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – Importance of Adhering to Statutory Requirements – The Court emphasized the importance of adhering to the statutory requirements before initiating legal proceedings against public servants – The Court held that failure to follow the statutory requirements may render the proceedings unsustainable and contrary to the provisions of the Act.

Cases Referred

• Baldev Singh Gandhi v. State of Punjab & Anr., (2002) 3 SCC 667
• Bihta Coop. Development Cane Mktg. Union Ltd. v. Bank of Bihar, AIR 1967 SC 389
• Bijender Singh v. State and Anr., (2024) 308 DLT 149
• CIT v. Bipinchandra Maganlal & Co. Ltd., AIR 1961 SC 1040 : (1961) 2 SCR 493 : (1961) 41 ITR 290
• CIT v. Indo-Mercantile Bank Ltd., AIR 1959 SC 713
• Dadaji alias Dina v. Sukhdeobabu & Ors., (1980) 1 SCC 621
• Daya Bhatnagar & Ors. v. State, (2004) SCC OnLine Del 33
• Dilworth v. Commissioner of Stamps, (1899 AC 99, 105-106 : 79 LT 473 : 15 TLR 61
• Dr. Subhash Kashinath Mahajan v. the State of Maharashtra & Anr., AIR 2018 SC 1498
• Hiralal Rattanlal v. State of U.P., (1973) 1 SCC 216 : 1973 SCC (Tax) 307
• Hitesh Verma v. State of Uttarakhand & Anr., (2020) 10 SCC 710
• Jamunabai Motilal etc. v. State of Maharashtra & Anr., 1977 SCC OnLine Bom 38
• Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 SCC OnLine SC 569
• Khalid Khan & Anr. v. State of U.P. & Anr., (2023) SCC OnLine All 2277
• Kokkanda B. Poondacha & Ors. v. K.D. Ganapathi & Anr., (2011) 12 SCC 600
• Kusum Lata v. State & Ors., (2016) SCC OnLine Del 1379
• Local Govt. Board v. South Stoneham Union, 1909 AC 57 (HL)
• Madras & Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality, 1944 SCC OnLine PC 7
• Mullins v. Treasurer of the County of Surrey, (1880) LR 5 QBD 170
• National Campaign on Dalit Human Rights & Ors. v. Union of India and Ors., 2017) 2 (SCC 432
• Noratanmal Chouraria v. M.R. Murli & Anr., (2004) 5 SCC 689
• Pramod Suryabhan Pawar v. State of Maharashtra & Anr., (2019) 9 SCC 608
• Prithvi Raj Chauhan v. Union of India & Ors., (2020) 4 SCC 727
• Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors., 2015 6 SCC 287
• Ram Narain Sons Ltd. v. CST, AIR 1955 SC 765
• Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439
• S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591
• Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subbash Chandra Yograj Sinha, AIR 1961 SC 1596
• South Gujarat Roofing Tiles Manufacturers Association & Anr. v. State of Gujarat & Anr., (1976) 4 SCC 601
• State of Rajasthan v. Leela Jain, AIR 1965 SC 1296
• State v. Om Prakash Rana & Ors., (2013) SCC OnLine Delhi 5107
• Swaran Singh & Ors. v. State & Anr, (2008) 8 SCC 435
• Union of India & Ors. v. VKC Footsteps (India) (P) Ltd.,(2022) 2 SCC 603
• Union of India v. State of Maharashtra & Ors., (2020) 4 SCC 761
• Usha Chakraborty & Anr. v. State of West Bengal & Anr., (2023) SCC OnLine SC 90
• West Derby Union v. Metropolitan Life Assurance Society, 1897 AC 647 at p. 655 (HL)

JUDGMENT

S.V.N. Bhatti, J. –

I. Factual Matrix

1. The Olympic Riding and Equestrian Academy, Eastern Jaunapur, New Delhi (for short, “OREA”), is a training facility for enthusiastic equestrian athletes. Mr. Kapil Nath Modi administers and runs the said training facility. Appellant Nos. 2, 3, 6 and Respondent No. 2 were the trainee athletes in OREA. Appellant No. 1 is the mother of Appellant No.

2. Appellant Nos. 4 and 5 are the parents of Appellant No. 6.

2.17 Appellant No. 2 was admitted for equestrian training into the Academy in June 2010. Appellant No. 3 was accepted into OREA in the year 2009. Appellant No. 6 has also been receiving training in the Academy for a little over two years. Respondent No. 2, a passionate athlete who dreamt of being the first Olympic champion of dressage, claims to have been receiving training in equestrian sport in OREA since 2015.

2.1 The equestrian sport dates back to the ancient Greek era and has been an Olympic sport from 1900 onwards. The dressage sport is popularly known as horse ballet. The riders and their horses are judged based on their movement, calmness, suppleness and flexibility. One judges the horses enthusiasm to perform each element with minimum encouragement from the rider. For strangers to the sport, including nonequestrian athletes, this sport displays the perfect sync between the horse and the rider.

3. The controversy considered in the present appeal reflects whether the athletes under training at OREA, who wanted to control the mind and body of a horse, have lost the calmness, suppleness and flexibility while being trained at OREA. The Criminal Appeal concerns the complaint filed by Respondent No. 2 on 29.04.2018 before SHO P.S. Fatehpur Beri, South Delhi under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, “the Act of 1989”) against the Appellants herein and the application dated 09.05.2018 filed under section 156(3) of the Code of Criminal Procedure, 1973 (for short, “the CrPC”) before the Ld. Metropolitan Magistrate, South Saket Court, Delhi.

3.1 A few dates and events between the contesting parties from 03.04.2018 to 09.05.2018 are prefaced to the narrative. On 03.04.2018, Appellant No. 4 filed a complaint before SHO, P.S. Fatehpur Beri, against the administrator of OREA. The said complaint is not made under any specific section of the Indian Penal Code, 1860. The administrator, however, considering the nature of the allegations in the FIR lodged against him before SHO, P.S. Fatehpur Beri, on 06.04.2018, moved an application for anticipatory bail before the Saket District Court, Delhi. On 11.04.2018, the anticipatory bail application of the administrator stood dismissed. On 12.04.2018, Appellant No. 1 and her husband filed yet another complaint against the administrator of OREA, on the alleged ill-treatment meted out to their son/Appellant No. 2 by the administrator. On 14.04.2018 and 15.04.2018, as the calmness of all the persons concerned is noticeably lost, in quick succession, admittedly, yet another complaint alleging sexual harassment, cheating and cruelty towards animals was filed against the administrator by Appellant Nos. 3, 4 and 6. A WhatsApp group “Alliance” was created by Appellant No. 6, which included Appellant Nos. 2 and 3 and one Daksh Mittal, another trainee athlete at OREA. Daksh Mittal wrote a letter dated 21.04.2018 to the administrator, informing the conspiracy being hatched by the members of the “Alliance” WhatsApp group to kill the administrator and attack Respondent No. 2 by pouring acid on Respondent No. 2. The administrator, on 22.04.2018, by referring to the letter dated 21.04.2018, filed a complaint before SHO P.S. Fatehpur Beri for protection and also to prevent any plan being executed either on the administrator or Respondent No. 2 by a few members of the WhatsApp group, “Alliance”. It is not preposterous to advert at this stage of the narrative that the complaint dated 22.04.2018 dealt with what is informed through a letter dated 21.04.2018 by Daksh Mittal/trainee athlete at OREA and nothing else.

3.2 On 28.04.2018, Appellant Nos. 3, 5 and 6, along with the police and officers of the Animal Husbandry Department, visited the training facility of OREA at Eastern Jaunapur, New Delhi. On 29.04.2018, Respondent No. 2 filed a complaint before SHO P.S. Fatehpur Beri against the Appellants herein under the Act of 1989, which is the genesis for the present Criminal Appeal.

3.3 The following cases and counter-cases are stated to have been filed/pending by and against the parties herein:

3.4 The grievance of Respondent No. 2 is that the information lodged on 29.04.2018 was not taken up, inquired, or investigated by the SHO of P.S. Fatehpur Beri. Respondent No. 2, alleges to have sent complaints/grievance petitions complaining inaction on the Complaint dated 29.04.2018, between 29.04.2018 and 08.05.2018, to all the authorities who matter in giving apt and appropriate directions to the SHO of P.S. Fatehpur Beri for timely investigation of the information lodged on 29.04.2018. Respondent No. 2 has a grievance that the inquiry/investigation, on the complaint dated 29.04.2018, did not happen as mandated by the Act of 1989. Hence, on 09.05.2018, Respondent No. 2 filed an application under section 156(3), read with section 200 of the CrPC before the Ld. Chief Metropolitan Magistrate, South Saket Court for the following prayers:

4. The Chief Metropolitan Magistrate referred the complaint dated 09.05.2018 to the SHO, P.S. Fatehpur Beri. Our attention has been drawn by the respective Counsel appearing for the parties to the complaint dated 29.04.2018 and the application dated 09.05.2018 filed before the Metropolitan Magistrate in detail in support of their respective arguments.

The application dated 09.05.2018 under section 156(3) of the Cr.P.C seeks to set in motion the jurisdiction of the competent criminal court on the complaint presented on 29.04.2018 by Respondent No. 2. Having in perspective the rival contentions canvassed by the parties, we deem it appropriate to excerpt the complaint dated 29.04.2018 filed before the SHO, P.S. Fatehpur Beri and also the application dated 09.05.2018 filed before the Magistrate for complete depiction of the alleged commissions or omissions under the Act of 1989. We indicate the change or improvement in the text of the complaint of Respondent No. 2 against the Appellants within the flower brackets of the application dated 09.05.2018. In a controversy as the one now examined by this Court; the narrative must be a mirror reflection of the case stated by Respondent No. 2. The excerpts would do the requirement and the complaint dated 29.04.2018 reads thus:

5. Application dated 09.05.2018 before the Metropolitan Magistrate under section 156(3)-

6. Vide order dated 05.07.2018, the application under section 156(3) filed by Respondent No. 2, was transferred from the Court of Sh. Anurag Das, Metropolitan Magistrate to the Court of Sh. Gaurav Gupta, Metropolitan Magistrate. On 09.07.2018, the Assistant Commissioner of Police, sub-division, Mehrauli, New Delhi, filed an Action Taken Report (Annexure P-27). The Additional Sessions Judge-02, South District, Saket Court, New Delhi, by the order dated 02.08.2018, held as follows:

7. Respondent No. 2, aggrieved by the order dated 02.08.2018, filed Criminal Appeal No. 817/2018 before the High Court of Delhi. On 28.04.2020, the High Court allowed the Criminal Appeal filed by Respondent No. 2, and the operative portion reads as follows:

8. By a separate judgment dated 28.04.2020, the High Court directed the prosecution of SHO of P.S. Fatehpur Beri under section 4(2)(b) of the Act of 1989. The operative portion reads thus:

8.1. The State of GNCT of Delhi and the officers filed Criminal Appeal No. 349 of 2021 before this Court against the order dated 28.04.2020 in CRL.A. 667/2018 & CRL.M.A. 11836/2018, 2660-61/2020. The said Criminal Appeal has been heard as a companion appeal and for convenience, disposed of by a separate judgment. Therefore, the instant Criminal Appeal is at the instance of Respondent Nos. 2 to 4 in criminal appeal No. 817/2018 before the High Court of Delhi.

9. We have heard Mr. Siddharth Luthra, Ld. Senior Advocate for the Appellants and Ms. Aishwarya Bhati, Ld. ASG for Respondent No. 1. We have also heard from Mr. Kapil Nath Modi, the Ld. Advocate, who is also the administrator and supervisor of OREA. Mr. Kapil Modi has been noted as a witness on one of the occasions to the casteist slur allegedly made by the Appellants at Respondent No. 2. Therefore, a faint objection to Mr. Kapil Modi appearing as the Counsel for Respondent No. 2 has been raised by Mr. Siddharth Luthra. Mr. Siddharth Luthra in support of his objection to Advocate Kapil Modi appearing in the appeal relied on a decision reported in Kokkanda B. Poondacha & Ors. v. K.D. Ganapathi & Anr., (2011) 12 SCC 600 In reply, Advocate Kapil Modi invited our attention to section 15A(12) read with section 20 of the Act of 1989 and contended that the prescription in either the Advocates Act, 1961 or Bar Council of India Rules is subject to the special protection granted by section 15A(12) read with section 20 of the Act of 1989 to a victim. To be fair to the Ld. Counsel appearing for the parties, allowing Mr. Kapil Modi to appear as Advocate for Respondent No. 2, is entirely left open to the discretion of this Court. However, as a principle, it may not be understood that we have considered the rigor of the Advocates Act read with the Code of Conduct on the one hand and section 15A(12) read with section 20 of the Act of 1989 on the other hand, when we allow Advocate Kapil Modi to appear for Respondent No. 2. At this juncture, we advert to an excerpt from Kokkanda B. Poondacha (supra), wherein it was observed that:

II. Submissions

10. Mr. Siddharth Luthra, firstly, argues that the order under appeal had not appreciated the full conspectus of the controversy preceding the filing of the complaint dated 29.04.2018 or the application dated 09.05.2018 before the Ld. Magistrate. The administrator of OREA has encouraged Respondent No. 2 to file a complaint alleging the commission of offences under the Act of 1989, though none existed over the years. He argues that the trainee Appellants and Respondent No. 2 have been trained at OREA, and nothing is stated to have happened for years, and everything was brought to the fore after the Appellants filed the complaints dated 03.04.2018 and 11.04.2018 against the administrator. The administrator, having been unsuccessful in getting anticipatory bail, etc., in the FIRs filed by the Appellants, has pursued or pressurized Respondent No. 2 to initiate prosecution by filing a complaint dated 29.04.2018 and the application dated 09.05.2018 under the Act of 1989 against the appellants. It is argued that these complaints are false and motivated. An attempt has been made by inviting our attention to the various complaints filed by the Appellants against the administrator of OREA to canvass that Respondent No. 2 has been roped in without any grievance vis-a-vis the Appellants. It is further argued that a bare reading or perusal of either complaint dated 29.04.2018 or application dated 09.05.2018 would be sufficiently clear that no case warranting setting in motion of prosecution under the Act of 1989 is made out. Secondly, the complaint dated 29.04.2018 and the application dated 09.05.2018 do not disclose that an act or omission made punishable by any law for the time being in force has been made out. The offence alleged against Appellants is stated under section 3(1)(r) and 3(1)(s) of the Act of 1989. To constitute an offence under section 3(1)(r) of the Act of 1989, the complaint must aver that the commission or omission has been made in public view. He relied on the decisions reported in Hitesh Verma v. State of Uttarakhand & Anr., (2020) 10 SCC 710 Pramod Suryabhan Pawar v. State of Maharashtra & Anr., (2019) 9 SCC 608 (before this Court), State v. Om Prakash Rana & Ors., (2013) SCC OnLine Delhi 5107 Kusum Lata v. State & Ors., (2016) SCC OnLine Del 1379 and Swaran Singh & Ors. v. State & Anr, (2008) 8 SCC 435 to contend on what and when the “public view” requirement is satisfied. The instant complaints do not satisfy the required ingredients of an offence under the Act of 1989.

10.1 Thirdly, it is argued that the allegations in the complaints are vague and indefinite and do not constitute an offence arising under the Act of 1989, independent of examination of any other material. Fourthly, it is argued that Respondent No. 2 has moved the court under section 156(3) of the CrPC. The Action Taken Report discloses that no offence has been made out against the Appellants under section 3(1)(r) of the Act of 1989. Respondent No. 2 has since moved the court of competent jurisdiction; the court of competent jurisdiction is guided by the requirements of section 156(3) of the CrPC in providing with the matter. In other words, the contention proceeds that the Metropolitan Magistrate is expected not to act mechanically but apply judicial discretion to the acts complained against before directing registration of FIR or closure of the complaint as no case is made out.

10.2 Mr. Siddharth Luthra contends that section 156(3) requires the Magistrate to carefully consider and apply its judicious mind and exercise its discretion before issuing any directions to the jurisdictional police station. If the Magistrate believes there is enough reason to proceed immediately, he could issue directions under section 156(3) for the registration of an FIR; on the contrary, if the allegations as made, require calling for a report, the Magistrate is enabled by the discretion in section 156(3) to call for a report. In support, he relies on the following judgements:

10.3 Fifthly, the allegations, even going by the tenor of respective complaints, are not made in public view, no third party or a witness has heard or seen any of the acts complained against the Appellants. Respondent No. 2, for a reason easily discernable, introduces the administrator and Cdr. Kuldeepak Mittal as witnesses to several incidents spreading over two years. The Counsel commends to the Court to juxtapose the primary complaint, requirements of the Act of 1989 and section 156(3) of the CrPC and decide whether any semblance of an offence is made out warranting registration of FIR/investigation, etc., under the Act of 1989 against the Appellants. If the ingredients of an offence under section 3(1)(r) of the Act of 1989 are made out, there is no gainsaying in drawing inferences on the innocence or otherwise of a person accused of these offences at this stage. In such cases, the motion set in for prosecution must reach its logical end. The registration of an FIR, investigation and prosecution result in consequences for the accused who are called upon to face investigation and trial, in spite of no charge/ offence being made out from the bare perusal of the complaint. Hence, the Ld. Trial Judge was correct in rejecting the application dated 09.05.2018. specifically adverting to the “Alliance” WhatsApp group chat, he argues that the sharing of views on this application cannot be construed as “public view” and, secondly, the WhatsApp conversation prima facie does not attract any of the ingredients constituting an offence under section 3(1)(r) of the Act of 1989. The Ld. Counsel argues that the entire WhatsApp conversation read together, no offence either under the Indian Penal Code, 1860 or the Act of 1989 is made out. At best, the chat reflects the immaturity of a few of the members of the “Alliance” WhatsApp group. The word faggot means a male homosexual but not a casteist slur intended by the Act of 1989.

11. Mr. Kapil Modi, per contra, argues that a casteist remark, is punishable under the Indian Penal Code, 1860. The Parliament, realizing the need to protect the marginalized sections of the Indian society from caste slurs or abetment of offences against people and property, enacted the Act of 1989. Respondent No. 2 is a standalone and one in several million SC/ST citizens of the country aspiring to win a gold medal in dressage in the Olympics. The complaint dated 29.04.2018 does disclose cognizable offences under the Act of 1989. The grievances of Respondent No. 2 made through Complaint dated 29.04.2018 fell on deaf ears of the police; when the recourse to section 156(3) of the CrPC was made, the Court of Metropolitan Magistrate through the order dated 09.07.2018, rendered the prosecution of an offence under the Act of 1989 just impossible. He asserts that the theory of the counter case by Respondent No. 2 for the cause of the administrator, etc., is yet another species employed to defeat the complaints. Ld. Counsel argues that this Court considers the complaints dated 29.04.2018 and 09.05.2018 and the relevant material to appreciate the offence complained against the Appellants herein. For a judicious consideration, the allegations in other FIRs are not looked into or examined by this Court in deciding whether an offence is made out.

11.1 Secondly, the appeals have been filed, either by suppressing material circumstances or by setting out the narrative in a misleading way. Thirdly, the order dated 09.07.2018 of the Metropolitan Magistrate is contrary to the tests of judicial discretion laid down by this Court under section 156(3) of the CrPC. The Trial Court records a finding as if no offence has been made out even without conducting a mini trial in the matter. Respondent No. 2, considering his background, suffered in silence the slurs alleged at him for months and years, and filed the complaint and application on 29.04.2018 and 09.05.2018, respectively, so the delay, would not lead to any adverse inference on the alleged commission of an offence under section 3(1)(r) of the Act of 1989. The argument on “public view” as sine qua non for attracting section 3(1)(r) is untenable in the circumstances of the case. Although OREA is a private training institute, the utterances satisfy as having been made within the academy. Therefore, these utterances once are made in OREA satisfy as having been made in public view. The absence of names of witnesses or the public who witnessed this slur is not fatal. During the investigation, the names of witnesses can be stated. Respondent No. 2 filed a complaint, which prima facie satisfies the requirements of an offence under section 3(1)(r) of the Act of 1989. The non-mentioning of witnesses who were present when these slurs and insidious comments were made is not fatal to the registration of FIR against the Appellants. The averments in the complaints are not ambiguous, indefinite or uncertain. The WhatsApp chat is also in the public domain, and Daksh Mittal is a third party. Daksh Mittal knows these slurs and knowing amounts to an allegation made in public view. He relies on judgements in Union of India v. State of Maharashtra & Ors., (2020) 4 SCC 761 National Campaign on Dalit Human Rights & Ors. v. Union of India and Ors., 2017) 2 (SCC 432 and Prithvi Raj Chauhan v. Union of India & Ors., (2020) 4 SCC 727 and prays for dismissing the appeal.

12. We have taken note of the rival submissions and perused the record relevant to the issue arising under the Act of 1989. The above raises the following points for our decision:

III. Analysis

13. On 20.03.2018, this Court delivered judgment in Dr. Subhash Kashinath Mahajan v. the State of Maharashtra & Anr., AIR 2018 SC 1498 In Union of India v. State of Maharashtra, (2020) 4 SCC 761 the directions in Dr. Subhash Kashinath Mahajan (supra) have been substantially reviewed/modified. In the interregnum, the Parliament stepped in and made the amendments vide the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 (for short, “Act No. 27 of 2018”) to the parent act.

14. The statutory scheme under the Act of 1989, through Act No. 27 of 2018, has undergone a few major changes. Section 18A is one of the sections that has a bearing on the procedure followed by the Trial Court and needs to be appreciated. Section 18A of the Act of 1989 came into effect on 20.08.2018. In the instant appeal, as already noticed, the alleged complaints were made between 29.04.2018 and 02.08.2018, and refer to the allegation made two years prior to the complaints. Respondent No. 2, by moving the application under section 156(3) of the CrPC invoked the jurisdiction of the Magistrate and therefore, the procedure and requirements of section 156(3) are attracted in examining the correctness of the order impugned.

14.1 Let us examine the discretion and jurisdiction of a Magistrate on the application filed under section 156(3), CrPC. Whether the Magistrate has to act and accept mechanically a complaint presented to him and direct registration of FIR or in his discretion, upon the examination of allegations order preliminary enquiry then proceed in the matter. The answer to the question centres around section 156(3) of the CrPC. The position in law is fairly well-settled and we advert to a few decisions on the point. In Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors., 2015 6 SCC 287 this Court observed that the Magistrate can look into the veracity of an application under section 156(3) because ordering inquiry requires the application of judicial mind and affidavit by the applicant and has held thus:

14.2 In Khalid Khan & Anr. v. State of U.P. & Anr., (2023) SCC OnLine All 2277 dealing with a converse situation, the High Court of Judicature of Allahabad observed that when the application under section 156(3) of the CrPC discloses the commission of a cognizable offence, then the concerned Magistrate must direct the registration of the FIR. Under the provisions of section 156(3) of the CrPC, a Judicial Magistrate has the discretion to direct a preliminary inquiry before ordering the registration of the FIR in cases where no cognizable offence is made out. Referring to Priyanka Srivastava (supra), the High Court highlighted the importance of verifying the veracity of allegations levelled in a complaint to keep in check the filing of applications under section 156(3) as a tool to harass people. Thus, from the above judgments, it is crystal clear when the application under section 156(3) of CrPC discloses a cognizable offence, then it is the duty of the concerned Magistrate to direct registration of the FIR, which is investigated by the investigation agency, in accordance with the law. Conversely, when the information received does not prima facie disclose the commission of a cognizable offence, but indicates the necessity for inquiry, in that case, the preliminary inquiry may be conducted in order to ascertain whether the offence complained is cognizable or not. The purpose of the preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information received reveals a cognizable offence or not.

14.3 We do not propose to multiply citations on the point and succinctly stated, the Magistrate, under section 156(3) of the CrPC, asks himself a question: whether the complaint, as presented, makes out a case for directing the registration of an FIR or calls for inquiry or report from the jurisdictional police station. The inner and outer limit of the exercise of this jurisdiction is on a case-to-case basis dependent on the complaint, nature of allegations and offence set out by such a complaint. Therefore, it is fairly well-settled and axiomatic by the decisions rendered under section 156(3) of the CrPC that the Magistrate does not act mechanically and exercises his discretion judiciously by applying mind to the circumstances complained of and the offence alleged against the accused for taking one or the other step. The case on hand principally concerns deciding whether the discretion is invalidly exercised by the Magistrate while ordering a report from the SHO.

15. From careful consideration of material between 29.04.2018 and the application dated 09.05.2018 read with the Action Taken Report, we are of the considered view that the Metropolitan Magistrate did not commit an illegality or irregularity seeking preliminary inquiry or receiving the Action Taken Report from the jurisdictional police station. It is further noted that the controversy before the High Court in Crl. A. 817/2018 was whether the Metropolitan Magistrate was legally correct in ordering a preliminary inquiry and the Action Taken Report on the application dated 09.05.2018, is vitiated or not. The impugned judgement has expanded the discussion and recorded a few findings, which are not need at all. Therefore, the order of the Magistrate calling upon a report in the circumstances set out above is legal.

16. The answer to Point-A would not decide the outcome of the appeal. This Court, in the exercise of its jurisdiction under Article 136 of the Constitution of India, ensures that not only the initiation of the criminal process is continued in just and deserving cases, but also avoids initiation of criminal process where the material does not disclose a prima facie case. What begs the question is that assuming, for deliberation, that the Metropolitan Magistrate was procedurally correct in ordering an inquiry or receiving the Action Taken Report; still this Court examines whether the complaint makes out a cognizable offence under the Act of 1989, and by accepting the report, the Magistrate has aborted the investigation and trial on the complaint dated 09.05.2018? The answer to the said question depends on the very material relied on by the complainant.

17. With the above perspective, we will refer to the allegations against each one of the Appellants as made in the complaints. The following tabular statement is prepared for a quick understanding of the offences specifically and generally alleged against the Appellants:

18. There cannot be two views on the proposition that to cause or register an FIR and consequential investigation based on the same petition filed under section 156(3) of the CrPC, the complaint satisfies the essential ingredients of the offences alleged. In other words, if such allegations in the petition are vague and do not specify the alleged offences, it cannot lead to an order for registration of an FIR and investigation.

18.1 In National Campaign on Dalit Human Rights (supra) and Union of India v. State of Maharashtra (supra), this Court has held that the constitutional goal of equality for all citizens of this country can be achieved only when the rights of members of the Scheduled Castes and Scheduled Tribes are protected. The prosecution machinery and adjudicatory bodies work to achieve this constitutional goal. The FIR registered and investigation must be taken forward subject to the complaint satisfying the requirements of an offence complained under the Act of 1989. See Usha Chakraborty & Anr. v. State of West Bengal & Anr., (2023) SCC OnLine SC 90:

19. Sections 3(1)(r) and 3(1)(s) of the Act of 1989 read thus:

19.1 Section 3(1)(r)

Section 3(1)(r) makes an intentional insult or intimidation intended to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view an offence. Structured in the golden rule of interpretation, this section flows as follows:

20. The cumulative effect of the structured application to a given situation is that the intentional insult or abuse coupled with the humiliation is made in any place within public view. The expression “in any place within public view” has an important role to play in deciding whether the allegation attracts the ingredients of an offence or not, and has been the subject matter of consideration in the following decisions:

21. Bearing in mind, the above interpretation, we examine and sum up the factual position as follows:

The accusation of intentionally abusing and humiliating Respondent No. 2 spans over a period of two years between 2016 and 2018. The allegation prima facie appears to be an omnibus and ambiguous allegation. The specific allegation in the complaint on Appellant No. 2 is that Appellant No. 2 called Respondent No. 2 “chuda”, “chamar”, “chakka” and “faggot”. The allegation does not refer to the place nor the public view before whom it was made.

21.1 Respondent No. 2 alleges that Appellant No. 1 made an insinuating casteist remark during the International Dressage Development League (IDDL) competitions. The Court ought not to be searching for a complete description of the accusation in a matter such as the present, but the litmus test is the date, time, and year when the incident said to have happened.

21.2 Appellant No. 4 is accused of humiliating Respondent No. 2 with a casteist remark allegedly on 17th December. The date is stated, but the year is not stated, leaving one to infer whether these remarks were made in 2016 or 2017. The accusation against Appellant No. 3 and Appellant No. 6 do not refer to a casteist slur but refer to abuses hurled at Respondent No. 2.

22. The above ex-facie consideration of accusations is kept in our perspective and we also take note of the change made to the allegations in the application filed before the Metropolitan Magistrate under section 156(3) on 09.05.2018. The marked change in incorporation of the words public place, in the application filed before the Metropolitan Magistrate. The improvement, at best, may be a verbatim reproduction of the language of section 3(1)(r) and 3(1)(s) of the Act of 1989. An important test for “in any place within public view” is within the view of persons other than the complainant. In this case, we are not examining whether OREA is a private or public place, but to appreciate the alleged offence. We juxtapose the allegation(s) with the requirement of insulting or intimidating in any place within public view is satisfied or not. These allegations read together or individually do not satisfy the requirement of having been made in public view. Serial Nos. 1-4 in the tabular statement intend to attract the offences punishable under the Act of 1989. Serial Nos. 5-7 cannot by any interpretation, whether as standalone or in the company of other allegations, be related to an offence under the Act of 1989.

23. The other allegation in the complaint is regarding the chat/conversation of the “Alliance” WhatsApp group members. In Pramod Suryabhan Pawar (supra; before this Court), this Court dealt with a chat between the complainant and the accused on WhatsApp and considered the effect of the conversation whether it was in public view or not. The relevant portion reads thus:

24. After appreciating the allegation on the exchange of WhatsApp messages in the group, we are not deciding on whether these allegations were made in public view or not but examine on the intrinsic element of the very accusation covering this aspect of the matter. At the cost of repetition, we quote the very sentence from the complaint:

25. The insinuation/slur does not cover ingredients of section 3(1)(r) or 3(1)(s) of the Act of 1989. The said word does not take within its fold any of the commissions or omissions made penal by the Act of 1989.

25.1 In his jurisdiction, the Metropolitan Magistrate examined the allegations and the requirements of law from this perspective. Let us now refer to the operative part of the Action Taken Report dated 09.07.2018:

26. From the above consideration, the available conclusion is that firstly, the Metropolitan Magistrate at the relevant point of time was justified in ordering a preliminary inquiry on the application dated 09.05.2018 and receiving the Action Taken Report from the jurisdictional police station. Further, the accusations in the complaints do not satisfy as having been made in any place within public view. Therefore, in a case such as the present, directing registration of FIR and further steps is unsustainable. Points A and B are answered in favour of the Appellants.

27. We have perused the judgment under appeal and the voluminous record filed by the contesting parties to support their respective contentions. Having gone through the record, by a judicious exclusion of material, we do not propose to delve into the reasons assigned by the judgment under appeal or the material relied on by the contesting parties. The observations of the High Court of Delhi directing the registration of an FIR, for the reasons we have recorded in the preceding paragraphs is untenable and warrants interference in the appeal. Accordingly, Point C is answered in favor of the Appellants and consequently, the impugned judgement is held unsustainable.

28. By looking at the number of cases filed, acrimonious allegations and counter-allegations made between parties, a doubt arises whether someone who cannot calm oneself can calm and guide a horse in the horses enthusiasm to perform each element with minimum encouragement from the rider and be an equestrian. We leave it to the passion and path of the parties.

29. For the above reasons and discussion, the criminal appeal stands allowed, and the order of the Metropolitan Magistrate dated 09.07.2018 is upheld.

Per S.V.N. Bhatti, J. – The instant Criminal Appeal has been tagged and taken up for hearing along with Criminal Appeal No. 348 of 2021 for the circumstances examined in both the Appeals are same. But for convenience, separate judgments are delivered.

2. On 29.04.2018, the respondent lodged a complaint before the Station House Office, P.S. Fatehpur Beri, New Delhi (for short, “the SHO”). The complaint dated 29.04.2018 narrates alleged offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, “the 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). On 09.05.2018, the respondent filed an application under section 156(3), read with section 200 of the Code of Criminal Procedure, 1973 (for short, “the CrPC”), before the Ld. Chief Metropolitan Magistrate, South Saket Court, to direct registration of an FIR on the complaint dated 29.04.2018.

2.1 The Respondent, on 25.05.2018, filed a Criminal Miscellaneous Application under sections 4(2) and 4(3) of the Act of 1989 before the Special Court of Shri Ajay Kumar Jain, Special Judge, New Delhi and is directed against the Special Commissioner of Police, Southern Range (for short, “Spl. CP”) etc. for registering an FIR and action as deemed just and proper, is taken in accordance with the Act of 1989. In effect and substance, the subject application deals with the alleged commissions and omissions by public servants in the discharge of the duties and functions under the Act of 1989. The miscellaneous application has been numbered as C.T. No. 536/2018. To wit, the respondent impleaded the Spl. CP, the SHO, P.S. Fatehpur Beri, and Shri Anurag Das, the Ld. Metropolitan Magistrate (South), Saket Court, New Delhi, as respondents in the application under Section 4 of the Act 1989 for initiating prosecution against them. The application alleges 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, by keeping in perspective the scope and object of the Act of 1989. It would be apposite to refer to the allegations, without diminishing or diluting the grievance stated in C.T. No. 536/2018 by the sole respondent, against the public servants as precisely as possible for our consideration:

3. By Order dated 05.07.2018, the Chief Metropolitan Magistrate transferred the application dated 09.05.2018 filed by the Respondent under section 156(3) read with section 200 of the CrPC from the Court of Shri Anurag Das, Metropolitan Magistrate to the Court of Shri Gaurav Gupta, Metropolitan Magistrate. On 06.07.2018, the Metropolitan Magistrate directed the Assistant Commissioner of Police (for short, “ACP”) to furnish the enquiry report on the complaint dated 09.05.2018 of the respondent. On 09.07.2018, the ACP filed an Action Taken Report. By Order dated 02.08.2018, the application dated 09.05.2018 filed under section 156(3) was dismissed by the Court of Metropolitan Magistrate. The order dismissing the application was challenged in Crl.A. 817/2018 before the High Court of Delhi. Through the judgement dated 20.04.2020, the criminal appeal was allowed. The accused, aggrieved by the said judgment, filed Crl.A. No. 348/2021 in this Court. The Metropolitan Magistrate, on the prayers for registering an FIR against the public servants, by a separate order dated 05.06.2018 in C.T. No. 536/2018, held as under:

(Ajay Kumar Jain)

ASJ-02 (South)

New Delhi / 05.06.2018″

4. Aggrieved by the order dated 05.06.2018, the respondent, on 06.06.2018, filed Criminal Appeal No. 667/2018 before the High Court of Delhi. The Commissioner of Police, Delhi, the Spl. CP, the SHO, P.S. Fatehpur Beri and Shri Anurag Das, Metropolitan Magistrate-01, (South) Saket Court, New Delhi were added as respondents in the appeal. The grounds of challenge were that the dereliction or negligence of the named public servants was deliberate and willful, facilitated the accused in the main complaint to go scot-free and also defeated the objective of the Act of 1989. The grounds of challenge are adverted to hereunder:

5. Through the impugned judgment, the criminal appeal filed by the respondent stood allowed, and the operative portion reads thus:

6. The State and the respondents in Criminal Appeal No. 667 of 2018, hence, filed the instant appeal.

7. The Ld. Additional Solicitor General, Ms. Aishwarya Bhati, appearing for the Appellants contends that the direction in the impugned judgment, calling upon the SHO to register FIR against the then SHO, P.S. Fatehpur Beri, is illegal, untenable and contrary to the mandate of section 4 of the Act of 1989. The direction to initiate proceedings against the then SHO of P.S. Fatehpur Beri ignores the inbuilt protection of section 4 available to a public servant.

7.1 It is vehemently argued that before initiating the proceedings, the viewpoint of the then SHO, P.S. Fatehpur Beri, on the alleged dereliction of duty or function should have been enquired into.

7.2 There has been a denial of opportunity to the public servant and in essence, the principles of natural justice are also violated.

7.3 The mechanism under section 4 of the Act of 1989 is firstly to undertake an administrative enquiry by the competent authority and arrive at a recommendation for initiating legal proceedings against the negligent public servant. In the case on hand, the application was moved before the court, and the Trial Court did not find a reason to order a departmental enquiry or initiate proceedings against the public servants named in CT. No. 536/2018. However, the High Court of Delhi examined each one of the dates and events narrated in the applications and recorded a finding on the public servant, resulting in a direction to initiate proceedings against the then SHO, P.S. Fatehpur Beri. The procedure followed is contrary to section 4 of the Act of 1989. Ms. Aishwarya Bhati made a few submissions on merits against the impugned judgment. For the present consideration, we are of the view that the contentions on merits, if need be, are adverted to and decided.

8. Mr. Kapil Nath Modi, Ld. Counsel appearing for the sole respondent argues that the appeal suffers from serious suppressions on material facts and the grounds raised on violation of principles of natural justice by the Court below is a convenient plea as well as a concocted version pressed before this Court only to avoid facing criminal proceedings for dereliction of duty. In the instant appeal, the public servants have deliberately flouted the duties and functions under the Act of 1989. Enough prevarications and suppressions are stated while invoking the jurisdiction of the Court.

Section 4 of the Act of 1989 is intended to make the public servants act and react to a complaint received under the Act of 1989 strictly in accordance with the law. The initiation of criminal proceedings through the impugned Judgment is justified, and no exception could be stated. He prays for dismissing the appeal.

9. In the accompanying Criminal Appeal No. 348 of 2021, filed by the accused, we have referred to the series of complaints and countercomplaints by the athletes, the administrator of OREA and the Respondent herein. We have referred to a few reported judgments of this Court on the object achieved by the Act of 1989. For brevity, these contentions are not adverted to in the instant judgment.

10. We have perused the record and noted the rival contentions canvassed by the Counsel appearing for the parties.

10.1 In the above narrative, this Court formulates and addresses the following two points:

11. After careful consideration of the arguments and the record, we are of the view that the examination of Point B would be dependent on the outcome of Point A.

12. Section 4 of the Act of 1989 has been substituted by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (Act No. 1 of 2016). To appreciate the change in the procedure, for taking cognizance of an offence punishable for the negligence of duty by a public servant, the unamended and amended section 4 are excerpted here under:-

13. Section 4(1), interpreted by the golden rule, has the following facets:

13.1 Section 4(2) has set out the duties for performance by a public servant and sub-section (2) uses the word include. The word include is a phrase of extension and not of restrictive connotations. The word include is not equivalent to mean. The word include is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. [See Dilworth v. Commissioner of Stamps, (1899 AC 99, 105-106 : 79 LT 473 : 15 TLR 61); South Gujarat Roofing Tiles Manufacturers Association & Anr. v. State of Gujarat & Anr., (1976) 4 SCC 601; Dadaji alias Dina v. Sukhdeobabu & Ors., (1980) 1 SCC 621].

13.2 The words and phrases in sub-section (2) must be construed as comprehending not only such acts as they signify according to their natural import but also those which the interpretation clause declares that they shall include. In the case on hand, the dispute is not on whether the alleged commission or omission comes within any of the clauses of subsection (2) of section 4. The consideration is on the interpretation of the proviso to sub-section (2) of section 4 and consequent cognizance under section 4(3) of legal proceedings. Conversely, whether cognizance of an offence can be directed/carried out without the recommendation of the administrative enquiry.

13.3 In other words, to set in motion the penal proceedings including taking cognizance for an offence of commission and omission under section 4(2) of the Act of 1989, the recommendation of the administrative enquiry is a sine qua non. The proviso is an inbuilt safeguard to the public servant from initiation of prosecution by every dissatisfied complainant.

On appreciation of offences covered by section 3 and the nature of offences conversely dealt with under section 4 of the Act of 1989, it is noted that a complaint under section 3 presupposes insult, accusation, victimization, etc. of a member of the Scheduled Castes and Scheduled Tribes by a non-Scheduled Caste/Tribe person. However, the commission or omission by a public servant is rendered as an offence when the public servant contravenes the duties spelt in section 4(2) of the Act of 1989 read with the Rules of 1995 and by a recommendation made to that effect. The test in an enquiry is whether the public servant willfully neglected the duties required to be performed by the public servant under the Act of 1989 or not.

13.4 A proviso is a clause that introduces a condition by the word provided.[1] The main function of a proviso is to put a qualification and to attach a condition to the main provision. It indicates the exceptions to the provision but may aid in explaining what is meant to be conveyed by its part.[2] A proviso is “introduced to indicate the effect of certain things which are within the statute but accompanied by the peculiar conditions embraced within the proviso”.[3] A proviso is enacted to modify the immediately preceding language. It is apposite while reiterating the interpretation of a proviso to refer to the recent judgement of this Court in Union of India & Ors. v. VKC Footsteps (India) (P) Ltd.,(2022) 2 SCC 603:

Interpreting the proviso to sub-section (2) of section 4, on the principles noted above, we notice that the proviso has an important role to play and in the scheme of proceedings under section 4 of the Act of 1989, acts as a condition precedent. Therefore, the commission or omission of any of the duties by the public servant becomes a cognizable offence against the public servant only on the recommendation of the administrative enquiry, for in law, an offence means any act or omission made punishable by any law for the time being in force. A combined reading of sub-sections (1), (2) and (3) of section 4, would demonstrate 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.

14. In law, an administrative enquiry presupposes an enquiry into the circumstances in which a public servant has a reason for not acting as expected by the provisions of the Act or whether willfully neglected the duties assigned to the public servant by the Act of 1989.

14.1 Sub-section (3) of section 4 enables the Special Court or Exclusive Special Court to take cognizance of the dereliction of a duty referred to in sub-section (2) of section 4 by a public servant. The reference to subsection (2) in sub-section (3) of section 4 would include the requirement in the proviso and the need for recommendation of an administrative enquiry as well. Alternatively, tapering the application of proviso to a later stage, viz., framing the charge, would defeat the very safeguard the proviso intends to accord to a public servant in the matter of registration of an FIR or facing criminal proceedings. The public servants are governed by conduct and discipline rules. The officers in charge of a police station are fastened with obligations, duties and functions in matters relating to crimes, prosecution, etc. The deviation of conduct is called misconduct by a public servant. Normally the word “misconduct”, among other contextual connotations, implies a wrongful intention and not a mere error of judgment. In service jurisprudence, the expression “misconduct” means wrong or improper misconduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanor, etc. [See Baldev Singh Gandhi v. State of Punjab & Anr., (2002) 3 SCC 667] Misconduct has not been defined in the Advocates Act, 1961. Misconduct, inter alia, envisages a breach of discipline, although it would not be possible to lay down exhaustively what would constitute misconduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, “improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour”. Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law [See Noratanmal Chouraria v. M.R. Murli & Anr., (2004) 5 SCC 689]

14.2 In the absence of section 4, the dereliction of duty by a public servant would have resulted in disciplinary proceedings and a punishment commensurate to the misconduct found against the public servant. Now for the same set of acts of commission or omission, section 4 makes them punishable and stipulates imprisonment of public servants for a term not less than six months which may extend to one year. The penal action can be set in motion by taking cognizance under section 4(3) of the Act of 1989. Therefore, it is all the more reason that the requirement in the proviso to sub-section (2) of section 4 receives grammatical interpretation and makes a condition precedent for taking cognizance of an offence under section 4(2) of the Act of 1989.

14.3 At this juncture, we refer to the decision in Bijender Singh v. State and Anr., (2024) 308 DLT 149 of the High Court of Delhi, which considered a point nearer to the one considered by us in this judgment. We notice with approval the view expressed in Bijender Singh (supra) and the operative portion reads thus:

14.4 The absence of recommendation would bar taking cognizance by the Court. In a given case, if a complaint without recommendation is filed before the Magistrate, the Magistrate before proceeding further to keep his decision conforming to section 4(2) read with the proviso, calls for a report/recommendation from the Department against the named public servant. The Special Court or the Exclusive Special Court based on an administrative enquiry report can take cognizance of the alleged offence and thereon direct penal proceedings. By 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.

15. By adhering to the above procedure, 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.

16. Let us juxtapose the statutory requirement with the chronology of events in the case on hand. On 05.06.2018, the Respondent moved the Court of the Metropolitan Magistrate for action against the named public servant under section 4 of the Act of 1989. The record does not disclose that the Magistrate called for an administrative enquiry report on the dereliction of duties complained against the named public servants. The material records that no case warranting penal proceedings under section 4 has been made out and by the order dated 05.06.2018 the Metropolitan Magistrate dismissed C.T. No. 536/2018. In the above background, let us review the impugned judgment. As noted in paragraph 60 of the impugned judgment, the High Court of Delhi 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, we note that the impugned judgment, for all purposes, adjudicated the alleged dereliction of duty by the named public servants and directed penal prosecution. These directions are not in conformity with the mandate of law. We are convinced that the direction in the impugned judgment for the above reasons and discussion is unsustainable, and accordingly, Point A is answered in favour of the Appellants.

17. As adverted to in paragraph no. 11 (supra), the consideration of negligence in the performance of duty as a fact is not taken up for consideration by us in this judgment. Taking up the merits of the negligence of duty by the public servant would be without the recommendation of the administrative enquiry and is impermissible. 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 and application dated 29.04.2018 and 09.05.2018, respectively, and also in the complaint dated 25.05.2018 under section 4 of the Act of 1989. 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 and the Criminal Appeal is allowed.