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2002 DIGILAW 1141 (PNJ)

Bahu @ Sushil Basantia v. State of Orissa

2002-10-28

P.K.TRIPATHY

body2002
JUDGMENT P.K. Tripathy, J. - This case under Section 482 of the Code of Criminal Procedure 1973 (in short, the Code) was heard on consent of the parties for disposal at the stage of admission along with a batch of Criminal Misc. Cases involving similar questions of law relating to requirement of commitment of the case involving offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, the Act) and non-investigation by a designated police officer in accordance with Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short, the Rules) is illegal. It being not convenient to pass a common judgment because of some distinguishable facts in each of the case, therefore, this separate judgment is delivered with respect to the present case. 2. Petitioner is the accused in G.R. Case No. 1156 of 1998 of the Court of Special Judge-cum-Addl. Sessions Judge, Kendrapara. On 7.1.1999, upon submission of charge-sheet under Section 376, Indian Penal Code and Section 3 of the Act, learned S.D.J.M., Kendrapara made over the case to the Court of Addl. Sessions Judge-cum-Special Judge, Kendrapara. On the same day, upon receipt of the record of the said G.R. Case, learned Addl. Sessions Judge took cognizance of the aforesaid offences and fixed the case to 29.1.1999 for supply of police- papers in as much as the accused is in custody. 3. In the present case petitioner has raised two points, viz. (i) that, learned Special Judge has no power to take cognizance without an order of commitment, and (ii) that, the charge-sheet submitted on the basis of an investigation by a police officer below the rank of Deputy Superintendent of Police being illegal, the charge-sheet is not acceptable. 4. After taking note of the provision of law and the ratio in the case of Gangula Ashok v. State of A.P., (2000)18 OCR (SC) 364 : 2000(1) Supreme 378, and the case of In Re : Sessions Judge-cum- Special Judge, Cuttack v. State of Orissa, (2002)22 OCR 92, this Court accepts the first contention of the petitioner on which learned counsel for the State conceded but at the same time stated that direction be issued to send back the case record to the S.D.J.M., Kendrapara to follow the procedure for commitment. When admittedly the case was not committed to the Court of Addl. When admittedly the case was not committed to the Court of Addl. Sessions Judge-cum-Special Judge, therefore, if in the meantime such a procedural irregularity has not been regularised, then the Courts below, i.e., the Addl. Sessions Judge-cum-Special Judge and the S.D.J.M., Kendrapara shall regularise the same in accordance with law and the ratio in the above noted two cases. For that reason, the order of cognizance by the Special Judge is found not maintainable unless there shall be an order of commitment. 5. So far as the second point is concerned, when admittedly the investigation has not been conducted by a duly appointed officer in accordance with Section 9 of the Act read with Rule 7 of the Rules. In case of Koira Naik and others v. State of Orissa, Criminal Misc. Case No. 1096 of 1999, disposed of today as per separate judgment (being one of the cases from the batch of cases heard), this Court has already taken a view by referring to a catena of decisions that unless the investigation has been made or shall be made in accordance with Section 9 of the Act read with Rule 7 of the Rules, cognizance of the offence under Section 3 of the Act cannot be taken for the purposes of issue of process, framing of charge and undertaking a trial. However, the offence under Section 376, Indian Penal Code in view of the provision in Section 4(2) of the Code being investiable by police officer below the rank of D.S.P. as the Investigating officer in the present case, therefore, the charge-sheet to that extent cannot be interfered with simply because part of the alleged offences was investiable by a superior officer. 6. It has also been stated in the petition under Section 482 of the Code that a prima facie case for the offence of rape is not made out because of consented cohabitation. The criminal proceeding has not proceeded to that extent. Therefore, at the stage of consideration of charge, the accused may bring such fact to the notice of the trial Court for appropriate order in that respect. 7. Since the petitioner is an under-trial prisoner, it is directed that the Courts below shall deal with the matter expeditiously in relation to commitment proceeding, if not already done. Therefore, at the stage of consideration of charge, the accused may bring such fact to the notice of the trial Court for appropriate order in that respect. 7. Since the petitioner is an under-trial prisoner, it is directed that the Courts below shall deal with the matter expeditiously in relation to commitment proceeding, if not already done. Similarly, any prayer by the prosecution for fresh investigation, if not made within a period of two weeks from today, that may not be a ground to detain the proceeding any further awaiting action of investigation from the investigating agency. Accordingly, the Criminal Misc. Case is allowed in part. Petition partly allowed.