Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1511 (PNJ)

Rakesh Kumar v. State of Punjab

2003-11-04

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity, Criminal Procedure Code) prays for quashing of order dated 29.8.2001 passed by Special Judge, Sangrur. The Special Judge has set aside the order dated 20.12.2000 passed by Sub Divisional Judicial Magistrate, Dhuri who had committed the case to the Sessions Court for trial. 2. Brief facts of the case necessary for disposal of the instant petition are that FIR No. 103 dated 6.5.1999 registered under Sections 342, 327, 389, 325, 465, 506, 326, 34 and 120-B Indian Penal Code at Police Station Dhuri was lodged by the complainant-petitioner who had business dealings with accused-respondents 2 to 4. According to the allegations made in the first information report, a dispute arose with regard to some payment and on 31.1.1999 appellant- respondents 2 to 4 are alleged to have illegally detained the petitioner at about 12.30 P.M. in the area of City Dhuri. It is alleged that they also inflicted injuries to the petitioner and he remained admitted in the hospital. The petitioner alleged in the first information report that he is a partner of R.K. Soap Industries, Focal Point, Moga along with his mother Natho Devi. He used to purchase raw material for manufacturing of soap from M/s Hem Detergent, Dhuri and he had financial dealings with that firm. He visited Dhuri after telephonic talk with Hukam Chand accused-respondent 3 for settling the accounts. He was served with tea and water because he was not feeling well on account of surgery. After adding interest on his own to the tune of Rs. 1,03,000/- a sum of Rs. 1,30,000/- was taken out as the due amount towards the petitioner. The discount of Rs. 68,000/- was to be given because the petitioner had sent the soap at Malerkotla on furnishing of guarantee by M/s Hem Detergent, Dhuri. It is further alleged that the raw material supplied by the accused-petitioner was of sub-standard and they were required to be given rebate. The accused Surinder Kumar and Hukam Chand stated that they would not give any supply to the petitioner. It is also alleged that the petitioner was not well and was in a hurry to reach Ambala. He left for Railway Station, Dhuri. The accused Surinder Kumar and Hukam Chand stated that they would not give any supply to the petitioner. It is also alleged that the petitioner was not well and was in a hurry to reach Ambala. He left for Railway Station, Dhuri. When he was about to purchase the railway ticket at about 12.00 Noon, Parmod Kumar accused-respondent son of Surinder Kumar accused-respondent approached him and stated that his father and uncle, the other accused- respondent were sitting in the car out side and they wanted to discuss some matter with him. He came out of the rail station. A Maruti car was standing out side the gate of the taxi stand. Surinder Kumar and Hukam Chand accused- respondents were sitting in the car. Surinder Kumar asked the petitioner as to whether the was to pay the cheque amounting to Rs. 1,30,000/- or not which he refused. Surinder Kumar abused him and also stated "Kutte Chuhree Chamar nu gaddi vich sutt lo keonki Chuhra sadi brabri Karda hai." All the three are alleged to have abducted the petitioner in the car forcibly and parked the same at some distance. Then Parmod Kumar accused-respondent son of Surinder Kumar accused-respondent forcibly put him in the car and is alleged to have beaten him up. The whole episode is alleged to have been witnessed by the uncle of wife of the petitioner, namely Tony who also resides in Dhuri City. Further allegations have been made tha the accused-respondents took the petitioner to the Cold Storage by forcing him to sit in the car. At the Cold Storage, they forcibly obtained the signatures of the petitioner on a cheque of Rs. 1,30,000/- and also got 2-3 blank papers signed from his after beating. The cheque and papers have been kept by the accused-respondents. Thereafter, all of them said "Chure Chamar you can do whatever you like." They brought him to the Railway Station in the car and forced him to board a train for Ambala after purchasing a ticket. He had to be admitted in Civil Hospital, Moga for treatment. 3. After investigation, the police presented the challan and the Magistrate framed seven charges vide order dated 28.7.2000. However, no charge was framed under Section 3(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity, the Act). He had to be admitted in Civil Hospital, Moga for treatment. 3. After investigation, the police presented the challan and the Magistrate framed seven charges vide order dated 28.7.2000. However, no charge was framed under Section 3(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity, the Act). Thereafter, an application was filed for framing of charge under Section 3(X) of the Act and it was prayed that the case be committed for sessions trial. The Magistrate came to the conclusion that case under section 3(X) of the Act was prima facie made out and he passed the following order :- "I have perused the judicial file minutely. After going through the FIR, report under Section 173 Criminal Procedure Code and statements of the witnesses under section 161 Criminal Procedure Code this Court finds that it is version of the complainant that accused party had called him churra chamar on 2/3 occasions. Thus, prima facie case under Section 3(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is clearly made out against the accused. But this offence is exclusively triable by the court of Sessions. According to Section 323 Criminal Procedure Code, "If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceeding before signing judgment that the case is one which ought to be tried by the Court of Sessions, he shall commit it to that Court under the provisions herein before contained (and thereupon the provisions of Chapter XVIII shall apply to the commitment so made). In the present case also during the trial this Court finds that the offence attributed to the accused is triable by the court of Sessions. As such, present case is liable to be committed to the court of Sessions for trial. Accordingly, application filed by the complainant is hereby allowed and case is committed to the court of Ld. Sessions Judge, Sangrur for trial for 8.1.2001..." 4. Before the Special Judge, Sangrur, an application was filed with a prayer that the accused-respondents be released from the offence under Section 3(X) of the Act. Accordingly, application filed by the complainant is hereby allowed and case is committed to the court of Ld. Sessions Judge, Sangrur for trial for 8.1.2001..." 4. Before the Special Judge, Sangrur, an application was filed with a prayer that the accused-respondents be released from the offence under Section 3(X) of the Act. The learned Special Judge accepted the application on the ground that Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for brevity, the Rules) imposes an obligation that offences under the Act are to be investigated by an officer not below the rank of Deputy Superintendent of Police. It further provides that Investigating Officer is to be appointed by the State Government/Director General of Police. Reliance has been placed on various judgments relied upon by the Special Judge that if the trial in respect of an offence under the Act is held in contravention of Rule 7 of the Rules, then thee same should be vitiated. The judgments on which reliance has been placed are D. Ramalinga Reddy alias D. Babu v. State of A.P., 1999(4) RCR(Criminal) 155; M. Kathiresan v. State (Madras), 1999(4) RCR(Criminal) 790; M. Niranjan Reddy v. State of Andhra Pradesh, 2000(4) RCR(Crl.) 204; and E. Seshaiah v. State of A.P., 2000(3) RCR(Criminal) 610. 5. The observations of learned Special Judge in this regard read as under :- "...The investigation into this case has not been conducted for the purposes of violating any of the provision of Act of 1989 and the challan before the trial Court was also not put up under this Act. Learned Additional Public Prosecutor has not been able to dispute this proposition that the appointment of the Deputy Superintendent of Police for the purposes of conducting investigation under Rule 7 of the rules of 1995 was never made. Therefore, I find that the investigation having not been conducted in accordance with provisions of Rule 7 of Rules, 1995, the case has to be tried by the Judicial Magistrate and the file has to be sent back to the Sub Divisional Judicial Magistrate, Dhuri for trial in accordance with law on the charges already framed. Therefore, I find that the investigation having not been conducted in accordance with provisions of Rule 7 of Rules, 1995, the case has to be tried by the Judicial Magistrate and the file has to be sent back to the Sub Divisional Judicial Magistrate, Dhuri for trial in accordance with law on the charges already framed. Since the case was entrusted to this court by the learned Special Judge, Sangrur, file is to be sent back to the learned Sub Divisional Judicial Magistrate, Dhuri through the learned Sessions Judge, Sangrur, and the parties are directed to appear before the learned Special Judge, Sangrur on 5.9.2001. Therefore, the application, which was separately filed by the accused for admitting them to bail even under Section 3(X) of the Act of 1989, becomes infructuous." 6. Mr. Rajesh Punj, learned counsel of the petitioner has argued that the Special Judge has committed grave error in law by discharging the accused- respondents from the offences under Section 3(X) of the Act. According to the learned counsel, violation of Rule 7 of the Rules would not vitiate the trial and in any case, there is no fault on the part of the petitioner. He has further urged that there is vital distinction in the cases relied upon by the learned Special Judge because in those cases, the offence right from the beginning was registered under Section 3(X) of the Act, whereas in the instant case, the offence has been committed lateron at the instance of Magistrate. In support of his submission, the learned counsel has placed reliance on a decision in M. Niranjan Reddys case (supra) and argued that there the first information report was registered under the Act and investigation was not carried out by a competent officer. 7. Having heard the learned counsel, I am of the considered view that the impugned order dated 29.8.2001 passed by the learned Special Judge, Sangrur does not suffer from any legal infirmity requiring interference by this Court in exercise of power under Section 401 Criminal Procedure Code It is patent that there is flagrant violation of Rule 7 of the 1995 Rules. A persual of various judgments cited by the learned Special Judge interpreting Rule 7 clearly shows that the offence being very serious, investigation is required to be held by an officer not below the rank of Deputy Superintendent of Police, who is to be appointed by the State Government, Director General of Police and Superintendent of Police. The investigation having not been conducted by an officer of the rank of Deputy Superintendent of Police, I am of the considered view that the judgments in the case of D. Ramalinga Reddy alias D. Babu v. State of A.P. (supra), M. Kathiresan v. State (Madras), (supra), M. Niranjan Reddy v. State of Andhra Pradesh, (supra) and E. Seshaiah v. State of A.P. (supra), are fully applicable and the mandatory provisions cannot be overlooked. It is appropriate to make a reference to Rule 7, which reads as under :- "7. Investigating Officer :- (1) An offence committed under the Act shall be investigated by a police officer not below of the rank of Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government, Director General of Police, Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along the right lines within the shortest possible time. (2) the Investigating Officer so appointed under sub-rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government. (3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution the Officer-in-Charge of Prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer." 9. A glance at sub-rule (1) of Rule 7 makes it evident that the rule is mandatory and failure to investigate the offence by an officer or the rank of Deputy Superintendent of Police would vitiate the trial. Therefore, I do not find any ground to interfere in the impugned order. 10. A glance at sub-rule (1) of Rule 7 makes it evident that the rule is mandatory and failure to investigate the offence by an officer or the rank of Deputy Superintendent of Police would vitiate the trial. Therefore, I do not find any ground to interfere in the impugned order. 10. The distinction which is sought to be drawn by the learned counsel for the petitioner between the four judgments cited above and the present case is that it was during investigation that the offence under Section 3(X) of the Act was made out and the FIR originally registered was not registered under that offence. However, the afore-mentioned distinction drawn by the learned counsel would also not come to has rescue because even in the FIR, the allegations have been levelled and it cannot be said that the offence was not disclosed. Moreover, even if during the course of investigation, such an offence is surfaced then duty of the Investigating Officer is to refer the case for investigation to competent authority. There can hardly be any distinction if the commission of offence has been found in the original FIR or it surfaced during investigation. Therefore, the aforementioned argument is liable to be rejected. For the reasons recorded above, this petition fails and the same is dismissed. Petition dismissed.