Nand Kumar Sinha v. State Of Bihar — 1999 DIGILAW 857 (PAT)

Judgment G.S.Chaube, J. 1. This revision is directed against the order dated 4.4.1998 of the Judge of the Special Court at Giridih constituted under Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as the Act) declining to dischage the petitioners in accordance with the provisions of Section 227 of the Code of Criminal Procedure in Giridih town PS. Case No. 304/95 corresponding to G.R. No. 2291/95. 2. According to the petitioners, on 8.4.1995, opposite party No. 2 Ram Prasad Rajak presented a written complaint before the 1st Additional District and Sessions Judge of Giridih, who appointed Judge of the Special Court (SCST Act) alleging commission of offence under Sections 144, 342, 452 and 506 of the Indian Penal Code (in short, to be stated as IPC) and Section 3(l)(ii)(v) (vii)(x) and (xv) of the Act by petitioners other than petitioner No. 6 Bhola Shankar Prasad. The complaint was registered in the file of the Special Court as complaint case No. 7/95. However, instead of proceeding with the complaint by taking cognizance on the basis thereof, learned Special Judge forwarded the complaint to the officer-in-charge of Giridih town police station to register a case/FIR and investigate and submit FF. On receipt of the complaint, the officer-in-charge of Giridih town police station registered a case against the petitioners other than petitioner No. 6 under the sections mentioned in the petition of complaint as referred to above, and entrusted the investigation to one B.N. Tiwary an Assistant Sub-Inspector posted at the police station. Sri Tiwary investigated into the allegation. In the meantime, the complicity of petitioner No. 6 was also disclosed by opposite party No. 2 filing a separate petition to the local Deputy Superintendent of Police. On conclusion of investigation, the police submitted final form (charge-sheet) against all the petitioners disclosing commission of offence by them under Sections 144, 342, 452 and 506, IPC and Sections 3 and 5 of the Act. It is stated that when final form was submitted before the Special Judge, he declined to act on the basis thereof observing that he had no jurisdiction. It is stated that when final form was submitted before the Special Judge, he declined to act on the basis thereof observing that he had no jurisdiction. Consequently, the final form was sent to the Chief Judicial Magistrate of Giridih, who took cognizance of the said offence on 13.12.1996 and, thereafter, made a written request to the District and Sessions Judge of Giridih to transfer the case to the Special Judge for disposal in view of the provision of the Act requiring trial of offences thereunder by a Special Court constituted thereunder. Consequently, the District and Sessions Judge of Giridih transferred the case to the Special Judge of Giridih by the order No. 182 dated 16.12.1996. 3. The petitioners approached this Court for quashing the entire criminal proceeding including the order of cognizance by filing an application under Section 482 of the Code of Criminal Procedure which was registered as Crim. Misc. No. 6300/97R. The proceeding before the Special Judge was sought to be quashed on grounds that the investigation was done by an officer of the rank of Assistant Sub-Inspector of Police; whereas according to Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 only police officer not below the rank of Deputy Superintendent was required to investigate offence under the Act and that according to the provisions of the Act, the Special Judge has been given only power of trial and absolutely no pretrial stage authority. That application under Section 482 of the Code of Criminal Procedure was disposed of by a Bench of this Court on 5.11.1997 observing that the petitioners might raise all those points before the Special Judge at the time of framing charge and if it was found in the nature and circumstances and the points of law involved, that the Special Judge is not in a position to try the case, he may proceed according to law. Copy of the order passed in Crim. Misc. No. 6300/97R is Annexure 4 to the application. On such direction having been given, the petitioners filed a petition before the Special Judge for discharging them under Section 227 of the Code of Criminal Procedure. Copy of the order passed in Crim. Misc. No. 6300/97R is Annexure 4 to the application. On such direction having been given, the petitioners filed a petition before the Special Judge for discharging them under Section 227 of the Code of Criminal Procedure. Their plea failed to find favour with the Special Judge who by his a impugned order rejected the petition and decided to proceed with the trial for offences under Sections 144, 342, 452 and 506, IPC as well as under Section 3(1)(v)(xv) of the Act which, according to him, were constituted by the facts stated. 4. Before proceeding further, it shall be must to state the allegations made in the petition of complaint which formed part of the FIR, which is Annexure 2. It has been stated in the complaint-petition that the accused-persons mentioned therein had forcibly occupied a part of building of the complainant (opposite party No. 2) who is a washerman by caste and member of a Scheduled Caste. In 1984, in presence of respectable local panchas, petitioner No. 1 acting on behalf of other petitioners entered into an agreement that they shall vacate the premises in their occupation within period of 1-1/2 years but they went back on their promise. When they declined to vacate the premises, opposite party No. 2 instituted an eviction suit against them. In course of the trial, the petitioners and their witnesses adduced altogether false evidence. However, on 11.9.1995, he succeeded in getting a favourable decree from the Court of the 2nd Additional District and Sessions Judge in Eviction Appeal No. 6/90. The Appellate Court had directed the petitioner to vacate the suit premises within one month. But, according to the averments made in the petition of complaint, when the complainant reached home after the pronouncement of the judgment by the Appellate Court, all the accused-persons surrounded him and threatened him that he will not be able to get the premises vacated. Instead of vacating the premises in terms of the order of the Appellate Court, petitioner No. 1 and others took the matter to this Court. Consequently, on 6.12.1995, opposite party No. 2 came to Ranchi for engaging a Counsel for his defence and went back home. However, on 8.12.1995 at about 11 a.m., all the petitioners except petitioner No. 6 entered inside his laundry shop situated in the same building, surrounded and abused him. Consequently, on 6.12.1995, opposite party No. 2 came to Ranchi for engaging a Counsel for his defence and went back home. However, on 8.12.1995 at about 11 a.m., all the petitioners except petitioner No. 6 entered inside his laundry shop situated in the same building, surrounded and abused him. They called him by his caste came dhobi and threatened to ruin him. They also became ready to assault him, but witnesses intervened and rescued him. As I have already stated at a later stage in course of investigation, a written information was given by opposite party No. 2 to the local Deputy Superintendent of Police Station that petitioner No. 6 had also participated in both the occurrences which had taken place on 11.9.1995 and 8.12.1995. 5. The petitioners sought their discharge from the proceeding primarily on the ground that when a written complaint was made to the Special Judge, he had no jurisdiction to send the same to the police under Section 156(3) of the Code of Criminal Procedure for investigation in view of the fact that such power is vested only in a Magistrate; that according to the provisions of the Scheduled Castes Scheduled Tribes (Prevention of Attrocities) Rules, 1995 which had come in force before the institution of the case. The power of investigation had been vested in the Deputy Superintendent of Police appointed by the State Government or the Director-General of Police or the Superintendent of Police of the District, but the case had been investigated and charge-sheet submitted by an officer of the rank of Assistant Sub-Inspector of Police and that offences as stated particularly those under the Act were not constituted in view of the fact that the petitioners were a tenant under opposite party No. 2 legally inducted and the landlord opposite party No. 2 having lost the proceeding initiated by him for eviction in the Court of Munsif had taken an appeal to the District Court and won. However, the petitioner had taken the dispute to this Court by filing an application under Section 115 of the Code of Civil Procedure. Only with ulterior motive to harass them, opposite party No. 2 had implicated them by concocting a story as stated in the petition of complaint. 6. However, the petitioner had taken the dispute to this Court by filing an application under Section 115 of the Code of Civil Procedure. Only with ulterior motive to harass them, opposite party No. 2 had implicated them by concocting a story as stated in the petition of complaint. 6. The learned Special Judged rejected the prayer of the petitioners for being discharged observing that even if the complaint filed by and on behalf of opposite party No. 2 had been forwarded by the Special Judge to the police for investigation, on that ground alone, registration of the case and investigation thereof does not become illegal in view of the fact that most of the offences mentioned in the complaint were of cognizable nature. Therefore, the officer-in-charge was competent to register a case on the basis of that complaint and direct investigation thereof by an officer subordinate to him. As regards investigation by an officer of the rank of Asstt. Sub-Inspector instead of a police officer not below the rank of Deputy Superintendent of Police, the learned Special Judge observed that since no provision has been made in the Act itself prescribing the manner or investigation, etc. in view of the provision of Section 4 of the Code of Criminal Procedure, the prosecute prescribed under the said Code was to be followed. According to him, Rule 7 of the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Rules, 1995 which was framed and notified by the Central Government on 31.3.1995 was not an enactment. Therefore, it was not to be necessarily followed. Therefore, according to him, there was no illegality in the investigation of the case by an Assistant Sub-Inspector of Police. On facts he came to the conclusion that offences punishable under Sections 144, 342, 452 and 506, IPC and Section 3(1)(v) and (xv) of the Act were prima facie made out. Therefore, it was not a fit case for discharging the accused-petitioners. 7. The impugned order of the Special Judge has been assailed by Mr. R.S.P. Sinha, learned Counsel for the petitioners on the self-same grounds as canvassed in the Court below. He has submitted that according to sub-section (3) of Section 156 of the Code of Criminal Procedure, only a Magistrate has been authorised to forward a complaint to the officer-in-charge of the police station for investigation. R.S.P. Sinha, learned Counsel for the petitioners on the self-same grounds as canvassed in the Court below. He has submitted that according to sub-section (3) of Section 156 of the Code of Criminal Procedure, only a Magistrate has been authorised to forward a complaint to the officer-in-charge of the police station for investigation. The Judge of the Special Court constituted under Section 14 of the Act not being a Magistrate has no jurisdiction to forward any complaint in the officer-in-charge of the police station. Therefore, when the Special Judge directed by his order dated 21.12.1995 to send the complaint filed by opposite party No. 2 to the officer-in-charge of Giridih town police station for registering a case and investigation, he acted without jurisdiction. Therefore, according to him, the entire investigation resulting in submission of the final form which is the basis of proceeding against the petitioners becomes non est. He has further contended that the Central Government had framed Rules under rule-making power vested in it by Section 23 of the Act and according to Rule 7 of this Rules, investigation was necessarily to be done by a police officer not below the rank of Deputy Superintendent of Police. Therefore, any investigation done by a police officer of inferior rank is illegal. He further submitted that on facts stated, no offence under the provisions of the Act has been constituted. 8. There is no dispute that opposite party No. 2 had initially made a written complaint in the Special Court on 8.12.1995 in respect of two occurrence which had taken place on 11.9.1995 and 8.12.1995. That complaint was sent by the Special Judge to the officer-in-charge of Giridih town police station for registering case and investigation in accordance with the provision of sub-section (3) of Section 156 of the Code of Criminal Procedure. On the basis thereof, the officer-in-charge drew FIR No. 304 of the said police station and directed investigation by an officer of the rank of Asstt. Sub-Inspector who on his part submitted final form (Annexure 3). 9. Section 156(1) of the Code of Criminal Procedure lays down that any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. 9. Section 156(1) of the Code of Criminal Procedure lays down that any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Sub-section (2) thereof lays down that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Sub-section (3) provides that any Magistrate empowered under Section 190 may order such an investigation as abovementioned. It is in exercise of the power vested under sub-section (3) that a Magistrate may send a written complaint presented before him by any person to an Officer-in-charge of police station for investigation instead of straightaway taking cognizance under Section 190. As stated earlier, a Special Judge a pointed under the Act for trying offences thereunder is not a Magistrate. Therefore, if any complaint is presented before him, he cannot direct investigation by police in terms of sub-section (3) of Section 156 of the Code of Criminal Procedure. The question arises if on the basis of a complaint sent by the Special Court, the officer-in-charge of a police station registers a case or draws an FIR and investigation proceeds on the basis thereof, whether such FIR and investigation based thereon shall be illegal and void, that is, of being no consequence? 10. In order to answer this question, it is necessary to refer to some other provisions of the Code of Criminal Procedure, particularly, Section 155. Subsection (1) of Section 155 of the Code of Criminal Procedure prescribes that when information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. Sub-section (2) thereof enjoins that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Sub-section (2) thereof enjoins that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Sub-section (3) lays down that any police officer receiving such order may exercise the same power in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police station may exercise in a cognizable case; and according to subsection (4) where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. 11. Thus, it is manifest that subsection (1) of Section 156 of the Code of Criminal Procedure vests the officer-in-charge of a police station with power to investigate any cognizable case which a Court having jurisdiction over the local area of his police station would have power to inquire into or try under Chapter XIII. Sub-section (1) of Section 157 of the Code of Criminal Procedure empowers the officer-in-charge to depute anyone of his subordinate officers not being below such rank as the State Government may by general or special order prescribes in this behalf to investigate. Sub-section (2) of Section 155 of the Code of Criminal Procedure specifically bars a police officer from investigating a non-cognizable case without being authorised by a Magistrate having jurisdiction to try such case or commit the same for trial. In my opinion, it is in respect of such cases (of non-cognizable nature) that the provision of sub-section (3) of Section 156 of the Code of Criminal Procedure comes in play. Therefore, under sub-section (3) of Section 156, a Magistrate has the jurisdiction to direct the police to investigate a case irrespective of the fact whether that case is of cognizable nature or is non-cognizable. If any other authority may be a Court of Session, is presented with a written complaint making out a non-cognizable case and that authority chooses to send that complaint to the police for registering a case and investigation, the police shall not get jurisdiction to investigate in view of explicit bar of sub-section (2) of Section 155 of the Code of Criminal Procedure. However, if the written complaint so sent to the police makes out a cognizable case as defined under Section 2(c) of the Code of Criminal Procedure, and qualified under sub-section (4) of Section 155, in my opinion, the police shall have no difficulty in drawing an FIR on the basis thereof and proceed to investigate in the manner prescribed under the Code. 11-A. In this connection, a reference to sub-section (1) of Section 154 of the Code of Criminal Procedure which is respecting information in cognizable cases may be useful. According to subsection (1) of Section 154, every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station shall be reduced to writing by him or under his direction, and be read over to the informant and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book in the kept by such officer in such form as the State Government may prescribe in this behalf. It may be recalled that even subsection (1) of Section 155 of the Code of Criminal Procedure refers to entering or quashing to be entered the substance of information giver to an officer-in-charge of the police station of the commission of cognizable offence in a book to be kept by him in such form as the State Government may prescribe in this behalf. Plain reading of Section 154 of the Code of Criminal Procedure shows that information respecting commission of a cognizable offence may be given by any person to the officer-in-charge of a police station either orally or in writing. If the information is intended to be given orally, such information is required to be reduced to writing by the officer-in-charge himself or by any other officer under his direction and informant is required to put his signature after the writing, his read over and explained to him. If information respecting commission of such offence is intended to be given in writing, the only requirement necessary is that such written information should be signed by the person intending to give it. Law does not require that such informant must be present before the police officer in person to hand over his written information. If information respecting commission of such offence is intended to be given in writing, the only requirement necessary is that such written information should be signed by the person intending to give it. Law does not require that such informant must be present before the police officer in person to hand over his written information. He may send the same to the officer-in-charge of the police station through anybody. If that written information report bears signature of the informant, it shall be within the competence of the officer-in-charge of the police station concerned to enter the same or substance thereof in the book meant for entering first information reports. Therefore, it follows therefrom that if an informant or complainant chooses to make a written complaint to a Special Judge or for that matter Sessions Judge disclosing commission of cognizable offences instead of taking the same to the officer-in-charge of a police station personally or sending it through anybody else, and the Special Judge transmits the written complaint to the officer-in-charge of police station concerned for investigation, I see no reason why FIR registered on the basis thereof at the police station shall lack the character of a valid information report giving jurisdiction to the police to investigate on the basis thereof. In the instant case, all the offences disclosed in the complaint of O.P. No. 2 except one under Section 506, IPC were cognizable in nature. Therefore, in my opinion, no illegality of any sort was committed by the officer-in-charge of Giridih town police station in drawing an FIR on the basis of the written complaint bearing signature of the complainant (opposite party No. 2) thereon and proceeding with investigation even though in terms of Section 156(3) of the Code of Criminal Procedure, the Special Judge had no jurisdiction to send the same to the police. 12. The grievance which is aired next by the learned Counsel is that in view of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Rules, 1995, only a police officer of the rank of Deputy Superintendent of Police or above was competent to investigate the case as it involves offences under the Act. Rule 7(1) of the said Rules prescribes that an offence committed under the Act shall he investigated by a police officer not below the rank of Deputy Superintendent of Police. Rule 7(1) of the said Rules prescribes that an offence committed under the Act shall he investigated by a police officer not below the rank of Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government, the Director-General of Police or the Superintendent of Police after taking into account his best experience, sense of justice and ability to perceive the implication of the case and investigate it along the right lines within the shortest possible time. Sub-rule (2) enjoins that the Investigating Officer so appointed shall complete the investigation on top priority within 30 days and submit a report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government. It has been contended by the learned Counsel for the petitioners that the rule being of mandatory nature, investigation of the case ought to have been done by an officer of at least the rank of Dy. Superintendent of Police and not by a police officer of the rank of Assistant Sub-Inspector of Police as has been done in the present case. On this ground, he has submitted that the entire investigation has become illegal and the entire proceeding vitiated. Therefore, the investigation done in the case by an Asstt. Sub-Inspector of Police is fit to be quashed. In support of his contention, he has placed reliance on a decision of the Apex Court in the case of Delhi Administration V/s. Ram Singh, AIR 1962 SC 63 . In that case, offence under Suppression of Immoral Traffic in Women and Girls Act of 1956 had been investigated by a Sub-Inspector of Police, even though under the said Act, an officer of the special police was empowered to investigate. Therefore, when the Sub-Inspector of Police submitted charge-sheet on completing investigation, the Magistrate having jurisdiction to try the case quashed the charge-sheet on the ground that the said police officer was not competent to investigate. The matter went to the High Court which upheld the order of the Magistrate. However, under certificate granted, the matter went to the Apex Court and it was held that since the offence under Suppression of Immoral Traffic in Women and Girls Act was required to be investigated by an officer of the Special Police, a Sub-Inspector of Police not being an officer of the Special Police was not competent to investigate. However, under certificate granted, the matter went to the Apex Court and it was held that since the offence under Suppression of Immoral Traffic in Women and Girls Act was required to be investigated by an officer of the Special Police, a Sub-Inspector of Police not being an officer of the Special Police was not competent to investigate. Therefore, the charge-sheet submitted by him was rightly quashed. In the present case, the learned Special Judge has taken the view that in the Act itself, there is no provision for investigation of offences thereunder. Therefore, in view of the provision of sub-section (2) of Section 4 of the Code of Criminal Procedure, the investigation was required to be done according to the procedure prescribed under the said Code and in view of the provision of Sections 156 and 157, the Assistant Sub Inspector of Police was competent to investigate. Regarding Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, he has observed that the same could not be followed in view of the fact that the Rule referred to above does not come within the meaning of enactment. 13. Section 4(1) of the Code of Criminal Procedure lays down that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. Sub-section (2) thereof provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but 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. Offences under any other enactment are to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the Code of Criminal Procedure, unless the special enactment also prescribes the procedure for investigation, inquiry and trial, etc. of such offences. Therefore, from this it follows that in respect of offences other than those under the Indian Penal Code, if the Special Act provides for investigation, inquiry and trial, etc. of such offences, the procedure prescribed by the Special Act has to be followed. Section 3 of the Act defines atrocities and prescribes punishment therefor. Section 14 provides for constitution of Special Court "for the purpose of providing for speedy trial". of such offences, the procedure prescribed by the Special Act has to be followed. Section 3 of the Act defines atrocities and prescribes punishment therefor. Section 14 provides for constitution of Special Court "for the purpose of providing for speedy trial". The Act does not prescribe how offences thereunder shall be investigated, inquired into, tried or otherwise dealt with. Therefore, offences under the Act were required to be investigated, inquired into tried or otherwise dealt with according to the procedure prescribed under the Code of Criminal Procedure. The Act was enacted in 1989 and came into force on 11.9.1989. Section 23 of the Act vests the Central Government with power of making rules for carrying out the purposes of the Act. Such rules are to be notified in the official gazette and required to be placed before both the Houses of Parliament for approval. It appears that the SC and ST (Prevention of Atrocities) Rules were notified and published in the official gazette on 31st March, 1995. 14. The validity of the Rules is not questioned at any quarter. The learned Special Judge has observed that since the Rules framed under the Act are not the mandates of the Legislature, the breach of the Rules is not enough to discharge the petitioners from the liabilities of criminal prosecution. In my opinion, the view taken by the learned Special Judge is not tenable. If Rules are made under rule-making power of the Government conferred under the Act and those rules are not contrary to the provisions of the Act, and are intended to carry out the purposes of the Act, such rules form part of the enactment under which they are framed. 15. In the case of Sethia Properties V/s. T.R. Bhawnani and others, AIR 1961 Cal 199 , a question had arisen whether Rule 9 of the West Bengal Premises Rent Control Rules framed under Section 47 of the West Bengal Premises Rent Control (Temporary Provisions) Act was part of the Statute. A Special Bench of the Calcutta High Court held that Rule 9 made under rule-making power vested in the State Government under Section 47 of the Act was a part of the statute itself and thus notionally an enactment if it was otherwise valid. A Special Bench of the Calcutta High Court held that Rule 9 made under rule-making power vested in the State Government under Section 47 of the Act was a part of the statute itself and thus notionally an enactment if it was otherwise valid. Therefore, once Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 is found to be made by the Central Government under its rule-making power conferred by Section 23 of the Act for carrying out the purpose of the said Act and is found to be not otherwise invalid, certainly form part of the enactment, that is, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and in respect of investigation of offence under the Act, the provisions contained thereunder, particularly, those contained under Rule 7 are to be necessarily observed. 16. According to Rule 7, offences under the Act shall be investigated by a police officer not below the rank of Deputy Superintendent of Police appointed by the State Government or the Director-General of Police or the Superintendent of Police. Any other police officer below the rank of a Deputy Superintendent of Police is not competent to investigate such offences after coming into force of these rules. Therefore, certainly the investigation made by an Assistant Sub-Inspector of offences which were committed after coming into force of the Rules lacks competency. 17. The question arises - what will be the effect of such investigation and final form submitted on the basis thereof? In the case of H.N. Rishbud and another V/s. State of Delhi, AIR 1955 SC 196 , a three-Judge Bench of the Apex Court had occasion to consider the effect of investigation of offences under the Prevention of Corruption Act, 1947 by a police officer below the rank of a Dy. Superintendent of Police. According to Section 5-A of the said Act, investigation of offences under the said Act as well as offences under Sections 161 and 165, IPC were mandated to be made by a police officer not below the rank of Dy. Superintendent of Police. Superintendent of Police. According to Section 5-A of the said Act, investigation of offences under the said Act as well as offences under Sections 161 and 165, IPC were mandated to be made by a police officer not below the rank of Dy. Superintendent of Police. However, it was held that if cognizance was taken on a police report vitiated by breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which followed it cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. That an illegality committed in course of investigation does not affect competence and jurisdiction of a Court for trial is well settled, it was observed. The Apex Court further observed that when such a breach is brought to the notice of the Court at an early stage of the trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirement of Section 5-A of the Act (Prevention of Corruption Act). The same rule was followed by the Apex Court in the case of State of U.P. V/s. Bhag-wan Kishore Joshi, AIR 1964 SC 221 . Indeed, the Apex Court had cautioned that statutory safeguards (respecting investigation by superior police officers) must be strictly complied with, for, they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecution. 18. In 1999 (1) East Criminal Case 283, Madras is directly on the subject. In that case, offences under Section 3(1) of the Act were investigated by an Inspector of Police and not by a D.S.P. as required under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of At-trocities) Rules, 1995 who on completion of investigation submitted a report as making of Act. Therefore, a Single Judge of the Madras High Court held that the Inspector of Police has no power and jurisdiction to investigate the offences under the Act in view of the mandate of Rule 7 of the said Rules. Hence, he directed investigation to be made by a D.S.P. to be appointed by the Superintendent of Police of the District. 19. Hence, he directed investigation to be made by a D.S.P. to be appointed by the Superintendent of Police of the District. 19. Thus, the provisions of Rule 7 of the Scheduled Castes and Scheduled. Tribes (Prevention of Atrocities) Rules, 1995 considered in the light of the decision of the Apex Court referred to above, appear to be of mandatory nature but at the same time not obligatory so as to set at naught an investigation done by any officer below the rank of D.S.P. but are only directory in nature, with the result that if attention of the Court concerned is drawn to this illegality, the Court may direct corrective measures to be taken, such as reinvestigation by the officer empowered under Rule 7 in the entirety or to the extent it is found prejudicial either to the accused or to the prosecution If this illegality is not brought to the notice of the Court at early stage, but is pointed out either in course of trial or after a finding of conviction is recorded, then such illegality in investigation done by an officer not competent to investigate can be taken into consideration if the same is shown to be prejudicial to the accused. In the instant case, as soon as final form was submitted on the basis of investigation done by an Assistant Sub-Inspector of Police wholly incompetent to investigate the case and cognizance was taken on the basis thereof, the petitioners approached this Court by filing Crim. Misc. No. 6300/97R. However, their plea did not find favour with learned Single Judge of this Court and the petitioners were driven to the necessity of going to the Special Judge and taken the self-same pleas at the time of framing charge. 20. Be that as it may in view of the decision of the Apex Court in the case of H.N. Rishbud (supra), the matter of reinvestigation or otherwise has to be left open to the Magistrate to take cognizance for passing appropriate order. Even otherwise, for reasons to be stated hereinafter when I shall take into consideration the plea of the petitioners for being discharged on merit of the allegation, I do not see any scope for directing reinvestigation by the competent officer as suggested by Mr. Even otherwise, for reasons to be stated hereinafter when I shall take into consideration the plea of the petitioners for being discharged on merit of the allegation, I do not see any scope for directing reinvestigation by the competent officer as suggested by Mr. Sinha relying on the decision of the Madras High Court in the case of A. Sasi Kumar V/s. S.P. Villupuram and others, 1999 (1) East Cr C 283 (Mad), referred to above. 20-A. Before proceeding further in the matter, it is necessary to put a note of caution that the finding hereinbefore made to the effect that the mandatory provisions of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 are only directory in nature and not obligatory so that investigation conducted by incompetent police officer shall not be liable to be quashed invariably depending at the stage such question has been raised, is not intended to give an authority or licence to a police officer below the rank of a Deputy Superintendent of Police to investigate into an offence under the Act in blatant disregard to the provision of Rule 7. The provision for investigation of offences under the Act by a Police Officer not below the rank of a Deputy Superintendent of Police has not been framed by the Central Government without any purpose, and only in a routine manner. The Act was enacted by the Parliament to protect the members of the Scheduled Castes and Scheduled Tribes from atrocities committed on them by members of superior of affluent classes belonging to non-scheduled castes and scheduled tribes category. To bring home the purpose, the Legislature has provided for stringent punishment to the offenders. Offences mentioned in sub-section (1) of Section 3 of the Act are punishable for term of imprisonment extending up to 5 years, although similar offences committed against persons other than members of the Scheduled Castes and Scheduled Tribes are punishable with far lesser sentences. For example, offence under Section 504, IPC is punishable for a term of 2 years imprisonment only, but same insult to a member of the Scheduled Castes or Scheduled Tribes has been made punishable with imprisonment up to 5 years. For example, offence under Section 504, IPC is punishable for a term of 2 years imprisonment only, but same insult to a member of the Scheduled Castes or Scheduled Tribes has been made punishable with imprisonment up to 5 years. Similarly for outraging the modesty of a woman other than the woman of Scheduled Castes or Scheduled Tribes, the offender is punished for a term of two years imprisonment under Section 354 of the Indian Penal Code, but for similar offence under the Act, punishment prescribed is up to five years imprisonment. Similarly, under sub-section (2) of Section 3, offence of fabricating false evidence prejudicial to a member of Scheduled Castes or Scheduled Tribes has been made punishable for life imprisonment and in some cases to death, while similar offence against others is punishable under the Indian Penal Code for lesser period. According to clause (v) of sub-section (2) of Section 3 of the Act, offences punishable with imprisonment for a term of ten years or more under the Indian Penal Code have been made punishable with imprisonment for life if such offences are committed against a person or member of Scheduled Castes or Scheduled Tribe. According to clause (i) of sub-section (2) of Section 3 of the Act, if a person fabricates false evidence and on basis thereof an innocent member of a Scheduled Castes or Scheduled Tribes is convicted or executed, the only punishment prescribed is death to the offender. In respect of offences under the Act, the privilege of pre-arrest bail to the offender has been specifically barred by Section 18 of the Act. 20-B. It was for this reason that Rule 7 has been framed directing that investigation of such offences shall be made only by a police officer not below the rank of a Deputy Superintendent of Police who is to be appointed keeping in view his past experience, sense of justice and capacity to perceive the implication of the case and investigate the same along the right lines. The provision has been made only as a safeguard that due to faulty investigation, which is always a possibility in case of investigation by inferior officers, innocent persons are not inconvenienced or punished and at the same time those who are real culprits should not escape scot-free. The provision has been made only as a safeguard that due to faulty investigation, which is always a possibility in case of investigation by inferior officers, innocent persons are not inconvenienced or punished and at the same time those who are real culprits should not escape scot-free. As stated earlier, such statutory safeguards in the matter of investigation must be strictly complied with because they have been conceived in public interest and provided as a guarantee against frivolous and vexatious prosecution. Therefore, if any complaint is made by a member of Scheduled Caste or Scheduled Tribes complaining commission of offences under the Act, such offences should invariably be investigated by an officer authorised or empowered by Rule 7 and not by any inferior police officer, let alone an officer of the rank of Assistant Sub-Inspector of Police. If the investigation is found to be made by any police officer below the rank of Deputy Superintendent of Police, it shall be the duty of the Magistrate empowered to take cognizance of such offences to ensure that such incompetent officer does not proceed in the investigation and if any final form is submitted by him, the same is not acted upon and reinvestigation by competent authority directed. It must be remembered that the Rules have been framed by the Central Government for observance in terms thereof and not in breaches and thereby permitting investigation by incompetent police officers, as a rule. 21. While discussing the question whether the offences under the Act are required to be investigated, inquired into, tried, or otherwise dealt with in accordance with the procedure prescribed by the Code of Criminal Procedure or by that prescribed under the special enactment, it has been held that in absence of any provision under the Act prescribing procedure to be following in the matter of investigation, inquiry and trial, etc. the procedure prescribed under the Code of Criminal Procedure has to be adhered to in view of the provision of sub-section (2) of Section 4 of the said Code, except in the matter of investigation to the extent prescribed under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. Viewed in this perspective, the procedure followed in the inferior courts after the stage of taking cognizance appears to be against the mandate of law. Viewed in this perspective, the procedure followed in the inferior courts after the stage of taking cognizance appears to be against the mandate of law. As indicated earlier, by virtue of the provision of the Act, the Special Court is a Court of Sessions. No provision has been made in the Act how the Special Court shall take cognizance of the offences under the Act and how it shall try the said offences. Therefore, necessarily the procedure prescribed under the Code of Criminal Procedure in these matters are to be observed. 22. Section 193 of the Code of Criminal Procedure deals with the subject of cognizance of offences by courts of session. According to this section, except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. Under Section 199 of the Code of Criminal Procedure, the Court of Session has the power to take cognizance directly on complaint in writing made by public prosecutor, in respect of offences of defamation mentioned in Chapter XXI of the Indian Penal Code alleged to have been committed against the President of India, the Vice-President of India, the Governor of a State, Minister of Union or of a State or of a Union Territory or any other public servant employed in connection with the affairs of the Union or of a State. The Act itself does not provide the manner in which the Special Court shall take cognizance of the offences of atrocities, etc. Therefore, unless the case arising out of the commission of offences under the Act is committed by a Magistrate in accordance with the provision of Section 209 of the Code of Criminal Procedure, Special Court is not competent to take cognizance of the offences in view of prohibition of Section 193 of the Code of Criminal Procedure. 23. In the case of Jhagru Mahto V/s. State of Bihar and another, 1992 (2) PLJR 738, a Division Bench of this Court had held that in terms of Section 193, the power to take cognizable under Section 190 of the said Code is to be exercised only by the Magistrate of first class. 23. In the case of Jhagru Mahto V/s. State of Bihar and another, 1992 (2) PLJR 738, a Division Bench of this Court had held that in terms of Section 193, the power to take cognizable under Section 190 of the said Code is to be exercised only by the Magistrate of first class. It was further held by the same Bench that the C.J.M. or any other Magistrate cannot transfer a case to the Court of Session which is a superior Court to that of the C.J.M. or any other Magistrate in view of Section 192 of the Code of Criminal Procedure. In that case, a written complaint disclosing commission of offences under the Act had been presented before the C.J.M., who on perusal thereof, sent the complaint-petition to the Court of Special Judge constituted under Section 14 of the Act. The Special Judge directed the Mukhiya of the Gram Panchayat to inquire into the allegation and submit his report. On report having been submitted by the Mukhiya, the Special Judge took cognizance of the offences under the Act. Therefore, it was held that in view of the provision of Section 193 of the Code of Criminal Procedure, the Special Judge had no power to take cognizance. Therefore, the C.J.M. was directed to examine the complaint afresh under Section 208 of the Code of Criminal Procedure and thereafter to proceed to held inquiry in accordance with law following the procedures laid down under the Code of Criminal Procedure; meaning thereby thereafter holding mandatory inquiry under Section 202 of the Code and going through the formalities of Section 208 to commit the case to the Court of Session under Section 209. 24. In the case of Haresh Kumar Singh and others V/s. Union of India and others, 1997 (1) PLJR 334, a bunch of writ applications as well as applications under Section 482 of the Code of Criminal Procedure had been filed challenging the vires of the Act on the ground inter alia that the Act is not workable as there is neither provision for institution and investigation of the case nor provision for trial or appeal against the judgment of the Special Court. On consideration of the provisions of Section 4 of the Code of Criminal Procedure, a Division Bench of this Court, to which I was a party, held that the Court of Sessions cannot take cognizance of an offence as a Court of original jurisdiction, unless the same has been committed to it by the Magistrate. The relevant portion on the point is reproduced below : "There is no provision under the Act with regard to the institution, investigation, inquiry and trial of the case and remand of the accused. In that view of the matter, the provisions of Cr PC will be applicable in view of the provisions contained under Section 4(2) of the Code. It is to be stated here that the Court of Sessions shall have to be designated or specified as a Special Court to try the offence under the Act. Thus, offences under the Act have to be tried by a Court of Session. The Court of Session cannot take cognizance of an offence as a Court of original jurisdiction under the Code unless the same has been committed to it by the Magistrate. Thus, all the provisions of Cr PC except with regard to the matter for which specific provisions have been made under the Act or the provisions of the Code which have been excluded from application shall be applicable with regard to the offences under the Act." 25. The same view was taken by a Division Bench of the Madhya Pradesh High Court in the case of Meera Bai V/s. Bhujbal Singh and others, 1995 Cr LJ 2376. Relying on the decision of this Court in the case of Jhagru Mahto, (supra) the learned Judge of the Madhya Pradesh High Court have held that the procedure provided under the Code of Criminal Procedure, 1973 has to be followed, while trying the offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and consequently, the Special Court constituted under the Act has no jurisdiction to try the offences directly provided under the Act without the case being committed to it under Section 193 of the Code of Criminal Procedure, 1973. 26. 26. In the case of Jyoti Arora V/s. State of Haryana and another, 1999 (1) East Cr C 410 (P&H), a Single Judge of Punjab and Haryana High Court has also held that once the special procedure is not provided under the Act that a Special Judge could directly take cognizance upon any complaint or a matter before him for trial of a case, the trial Court was without jurisdiction to proceed in the matter. The learned Single Judge has further held that Special Court could not take cognizance of an offence as a Court of original jurisdiction unless the case was committed to him by a Magistrate under Section 193 of the Cr PC. 27. As noticed earlier, after taking cognizance of the offence against the petitioner, the learned C.J.M. of Giridih, wrote a latter to the Sessions Judge for transferring the case to the Special Court in view of the provision under the Act that the offences thereunder were to be tried by such a Special Court. On such request having been made, the learned Sessions Judge of Giridih transferred the case from the Court of C.J.M. to the Court of the Special Judge of Giridih by his order dated 16.12.1996. Certainly such order made by the learned Sessions Judge was in administrative capacity in view of power vested in him under Section 408, Cr PC. But, certainly the procedure followed in the inferior courts was strange one not provided either under the Act of ever in the Code of Criminal Procedure. Once the learned C.J.M. took cognizance of the offence which he had jurisdiction to do in view of the provision of Section 190, Cr PC, he was required to commit the case himself or get the same committed by any other competent Magistrate subordinate to him in accordance with the provision in the said Code. The case could have been committed either directly to the Special Court being Court of Sessions or to the Court of Sessions presided over by the Sessions Judge who on his p could have made over the case involving offences of atrocities punishable under the Act to the Special Court in accordance with the provisions of Section 194 of the Code of Criminal Procedure. That not having been done, in my opinion, Special Court constituted under Section 14 of the Act lacked jurisdiction to take cognizance of the offences under the Act and try the same. Therefore, the proceeding arising out of Giridih town PS. Case No. 304/95 corresponding to G.R.No. 2291/95 has necessarily to go back to the C.J.M. of Giridih for proceeding thereunder in accordance with law. 28. Before parting, it is necessary to dispose of the plea canvassed on behalf of the petitioners for their discharge on consideration of allegations and evidence collected in course of the investigation. In the petition of complaint that had been filed, supplemented by a subsequent letter of the complainant (opposite party No. 2) addressed to the Deputy Superintendent of Police of Giridih, it has been alleged that the petitioners were in occupation of a part of his building and in 1984 executed an agreement to vacate the premises within 1/2 years. When they failed to keep their promise, the complainant was required to institute a suit for their eviction, which he lost in the trial Court. Thereafter, he preferred an appeal and won it. The petitioners, thereafter, surrounded and abused him on 11.9.1995 the day the judgment in appeal preferred by him was delivered by the 2nd Addl. District and Sessions Judge of Giridih. Thereafter, the petitioners moved this Court. (It is stated on behalf of the petitioners that they had approached this Court by filing a proceeding under Section 115 of the Code of Civil Procedure). When opposite party No. 2 returned home after engaging a Counsel at Ranchi 8.12.1995, all the petitioners entered inside his laundry shop, surrounded him and abused. Even they called him by his caste name dhobi with an intention to insult him. They even intended to assault him, but by intervention of witnesses he could be rescued. On perusal of the case diary, I have found that almost all the witnesses have stated that on 8.12.1995 these petitioners formed an unlawful assembly, entered inside the laundry shop of opposite party No. 2, surrounded him and abused. Some witnesses have gone to the extent of saying that the petitioners threw articles kept in the laundry shop here and there. Some witnesses have gone to the extent of saying that the petitioners threw articles kept in the laundry shop here and there. Therefore, those facts certainly constitute offences under Sections 144, 342, 506 and 448 if not under Section 452 of the Indian Penal Code (because the ingredient of making preparation for causing hurt, etc. is entirely lacking). Therefore, the petitioners appear to have no escape from the offences under the Indian Penal Code referred to above and cannot be discharged. 29. However, after investigation police submitted charge-sheet for commission of offences under Sections 3 and 5 of the Act as well. Section 3 of the Act defines atrocities. Section 5 only prescribes for enhanced punishment for subsequent conviction and does not define any offence. The learned Special Judge has observed that on the basis of allegations made in the complaint and statements of witnesses examined in course of investigation, offences as defined in clauses (v) and (xv) of sub-section (1) of the Section 3 of the Act are made out. It will be appropriate to reproduce the relevant provisions of Section 3 of the Act: "Section 3. Punishments for offences of atrocities. (1) Whoever not being a member of a Scheduled Caste or a Scheduled Tribe (v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water. xxx xxx xxx (xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine." 30. From the case diary, one finds that opposite party No. 2 had instituted an eviction suit against the petitioners in the Civil Court for their eviction from the premises let out by him to them. After having lost in the trial Court, he preferred appeal and won the same. Thereafter, a civil revision was filed in this Court. It is stated that the civil revision was allowed. Against that order, the matter went to the Apex Court which held that against the judgment and decree of the Appellate Court, second appeal by and not revision. After having lost in the trial Court, he preferred appeal and won the same. Thereafter, a civil revision was filed in this Court. It is stated that the civil revision was allowed. Against that order, the matter went to the Apex Court which held that against the judgment and decree of the Appellate Court, second appeal by and not revision. On this ground, the order of this Court made in civil revision was set aside. It is admitted at the bar that after the decision of the Apex Court, opposite party No. 2 the landlord has been put in possession. If the petitioners were tenant under opposite party No. 2 and the dispute was being tried in course of civil jurisdiction, the act of the petitioners in possessing a portion of the building of opposite party No. 2 could never be described as wrongful to invite the mischief of clause (v) of subsection (1) of Section 3 of the Act. Similarly, there is nothing on the record to show that the petitioners either forced opposite party No. 2 or other members of his family or caused him or any member of his family to leave his house, village or other place of residence. Therefore, no offence under clauses (xv) of sub-section (1) of Section 3 of the Act is also made out. Even clause (x) of sub-section (1) of Section 3 is not attracted in view of the fact that even though the petitioners are said to have intentionally insulted or intimated opposite party No. 2, it was not in a place within public view. Evidence of the witnesses is that petitioners entered inside the laundry shop of opposite party No. 2, surrounded and abused him. Opposite party No. 2 (the complainant) and his servant Gopal Rajak who was allegedly inside the laundry have stated that the petitioners had even called him as dhobi in a deregotary manner. However, none of the witnesses of the neighbourhood has stated that he had heard any of the petitioners using the word dhobi. Even though it is assumed accepting the version of complainant and Gopal Rajak that the complainant was addressed as dhobi in a deregotary manner with intention to insult or humiliate him, it was done inside the four walls of the laundry shop of the complainant and not in public view. Even though it is assumed accepting the version of complainant and Gopal Rajak that the complainant was addressed as dhobi in a deregotary manner with intention to insult or humiliate him, it was done inside the four walls of the laundry shop of the complainant and not in public view. Therefore, even the mischief of class (x) of sub-section (1) of Section 3 of the Act is not attracted. None of the remaining offences mentioned in sub-section (1) of sub-section (2) of Section 3 are found to have been constituted on the facts stated by the complainant and witnesses examined in course of investigation. In other words, no offence even prima facie under the Act is found to have been made out against any of the petitioners. Once it is found on the basis of material in the case diary that no offence under the Act is constituted by the allegations and statements of witnesses recorded in course of investigation, the Special Court gets no jurisdiction to try the case, apart from the fact that the case has not been committed to it in accordance with the provision of the Code of Criminal Procedure. 31. Therefore, the application is allowed and order dated 4.4.1998 of the Special Judge (SC & SC Act) made in Giridih town P.S. Case No. 304/95 corresponding to G.R. No. 2291 /95 is hereby set aside and the proceeding is directed to be sent back to the C.J.M. for proceeding in accordance with law in the light of the observations made above.