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2002 DIGILAW 680 (ORI)

SUBASH CHANDRA SAMANTRAY v. STATE OF ORISSA

2002-10-28

P.K.TRIPATHY

body2002
JUDGMENT : P.K. Tripathy, J. - Petitioner is the accused in G.R. Case No. 73 of 1999 of the Court of Additional Sessions Judge-cum-Special Judge, Khurda, arising out of Chandaka P.S. Case No. 74 of 1999, involving offences punishable under Sections 354/506, Indian Penal Code read with Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (in short "the Act"). Petitioner has prayed to quash the said criminal proceedings on the grounds that: (1) false and fabricated case has been instituted against him; (2) the investigation is vitiated for breach of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short "the Rules"); and (3) the proceeding is not maintainable in the manner that has so far proceeded. 2. This case was heard along with the batch of cases involving the offence u/s 3 of the Act with similar and other contentions and each of the cases has been disposed of by separate judgments delivered today. In this case also this is the separate judgment. It be noted here that both the parties have consented for disposal of the application u/s 482, Code of Criminal Procedure at the stage of admission. 3. Learned Counsel for the Petitioner argued that documents vide Annexures 1 to 7 clearly reveal that there is land dispute between the accused and the informant and her group, i.e., her relations and community men. He further argued that because of institution of civil proceeding, passing of status quo order, institution of criminal case on the basis of a complaint filed by the Petitioner and thereafter initiation of proceeding u/s 107, Code of Criminal Procedure that resulted in creating the FIR Annexure-8 for setting the criminal case against the Petitioner with imaginary occurrence relating to outraging modesty of the informant. Learned Counsel for the Petitioner thus argued that taking note of all such facts and circumstances it is appropriate to invoke the inherent power to quash the proceeding. Learned Standing Counsel on the other hand opposed to that prayer on the ground of non-completion of investigation. He also argued that nothing prevents the Petitioner to bring such facts to the notice of the Investigating Officer for due verification at the time of investigation. This Court finds substance in the submission of the learned Standing Counsel. Learned Standing Counsel on the other hand opposed to that prayer on the ground of non-completion of investigation. He also argued that nothing prevents the Petitioner to bring such facts to the notice of the Investigating Officer for due verification at the time of investigation. This Court finds substance in the submission of the learned Standing Counsel. Be that as it may, the documents relied upon by the Petitioner ipso facto does not prove his innocency to create a strong ground in favour of his innocency. But that is a matter to be verified either by the Investigating Officer in the course of investigation or by the trial Court at appropriate stage of the Criminal Proceeding. Thus, the Criminal Proceeding is not liable to be quashed on the aforesaid ground. The FIR Annexure-8 reveals registration of Chandaka P.S. Case No. 74 of 1999 corresponding to G.R. Case No. 73 of 1999 for the offence under Sections 354/506, Indian Penal Code and Section 3 of the Act. It also reveals from the said FIR that the O.I.C. Chandaka P.S. registered the P.S. Case for undertaking the investigation. It thus appears from the FIR as well as the averments of the Petitioner, which is not disputed by the State, that after lodging of the FIR investigation was conducted by an officer who was not appointed in accordance with Section 9 of the Act read with Rule 7 of the Rules and the G.R. Case was pending in the Court of Additional Sessions Judge-cum-Special Judge, Khurda awaiting the Final Form. 4. In the case of Gangula Ashoka and Anr. v. State of A.P., (2000) 18 OCR (SC) 364, the Apex Court has held that: 16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight- away be laid before the Special Court under the Act. In view of that the G.R. Case is not continuable in the Special Court unless there is an order of commitment. In other words, a complaint or a charge-sheet cannot straight- away be laid before the Special Court under the Act. In view of that the G.R. Case is not continuable in the Special Court unless there is an order of commitment. Therefore, it is observed and directed that if in the meantime the G.R. Case has not been made over to the Magistrate who has jurisdiction to take cognizance, then it be done immediately after receipt of a copy of this order by learned Addl. Sessions Judge-cum-Special Judge, Khurda and thereafter the cognizance taking Magistrate shall proceed with the case in accordance with law. 5. In the case of in Re: Sessions Judge-cum-Special Judge, Cuttack v. State of Orissa, (2002) 22 OCR 92, this Court with reference to Section 9 of the Act and Rule 7 of the Rules and Section 4(2), Code of Criminal Procedure has laid down the ratio that investigation into an offence u/s 3 of the Act can only be conducted by a Police Officer authorised under law. Adopting that ratio and the decision in a catena of cases, this Court in other Criminal Misc. cases (out of the batch of cases) has held that cognizance of the offence u/s 3 of the Act cannot be taken if the investigation is not done by a Police Officer in accordance with Section 9 of the Act and Rule 7 of the Rules. This Court also held that if the Investigating/Prosecuting agency shall make a move for investigation by a competent police officer, that shall be considered in accordance with law by the cognizance taking Magistrate. This Court also held that if a charge-sheet is submitted for the offence u/s 3 of the Act along with other offences punishable under the Indian Penal Code as an outcome of an investigation done by a Police Officer other than the Police Officer as provided under Rule 7, then while not taking cognizance of the offence u/s 3 of the Act Court can proceed with the criminal proceeding with respect to other offences if there exists a prima facie case in that respect. This Court adopts the same principle so far as the present case is concerned. 6. This Court adopts the same principle so far as the present case is concerned. 6. For the reasons indicated above, while not quashing the FIR, P.S. Case and the G.R. Case, the Courts below are directed to proceed in accordance with law so far as the G.R. Case No. 73 of 1999 is concerned. The Criminal Misc. Case is disposed of accordingly. Crl. Misc. Case accordingly disposed of.