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2003 DIGILAW 845 (JHR)

SHAHNAWAZ ANSARI v. STATE OF JHARKHAND

2003-07-17

VIKRAMADITYA PRASAD

body2003
Judgment : VIKRAMADITYA PRASAD, J. ( 1 ) THIS Criminal Misc. Petition has been filed for quashing the investigation arising out of Giridih Nagar P. S. Case no. 78/2003, Cr. M. P. Case No. 615/2003, pending in the Court of Chief Judicial Magistrate, Giridih, and for quashing the order dated 11-6-2003 passed in that case. ( 2 ) THE short facts of this case are that the FIR has been lodged under Section 323. 341, 379, 384 IPC and 3/4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Annexure-1. As per Annexure 1, investigation had been given to one S. B. Chowdhury, Sub-Inspector. ( 3 ) THE grievance of the petitioners is that the investigation is being conducted by an officer, who is not authorized to investigate the case under Rule 7 of the Scheduled castes and Scheduled Tribes (Prevention of atrocities) Rules, 1995. It appears that on the request of the Investigating Authority for issuance of warrant of arrest, the Chief Judicial Magistrate has issued warrant of arrest against the petitioners, vide order dated 11-6-2003, which is impugned in this case. ( 4 ) THE writ petition can be disposed of on some legal points only. It is undisputed that under the Rules, the officer, not below the rank of Dy. S. P. , is required to investigate the case instituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Apparently, the case is being investigated by an officer of the rank of S. I. ( 5 ) THE learned counsel appearing for the petitioners, relying on two decisions rendered in the case of Mathura Singh v. State of Jharkhand reported in 2002 Cri LJ 3798 : (2002 AIR Jhar HCR 876) and in the case of Mohan Choudhary v. State of Bihar reported in 2000 (1) East Cr C 211 has argued that the investigation be quashed and the order impugned be set aside. In those five cases, cognizance was challenged after investigations had been found to have been conducted by a person not authorized to investigate. Here the cognizance has yet set been taken. In those five cases, cognizance was challenged after investigations had been found to have been conducted by a person not authorized to investigate. Here the cognizance has yet set been taken. Therefore, I think that this matter is quite pre-mature and the petitioners do not get any right to challenge the investigation itself and challenge its legality, but the cause of action for challenging of its legality has arisen because of the requisition having been made by the s. I. to the Court of Chief Judicial Magistrate for issuance of warrant of arrest, consequent upon which warrant of arrest has been issued against the petitioners. ( 6 ) LEARNED counsel appearing for the petitioners submits that in such circumstances, at one hand, unauthorized authority is conducting the investigation and on the other hand, on his instance during the investigation, the warrant of arrest has been issued. Therefore, the petitioners are precluded from seeking anticipatory bail and they should not be allowed to suffer on account of the aforesaid result coming out of an Illegal investigation being conducted. ( 7 ) SINCE the investigation is not complete, so at any moment, the investigation can be handed over to a person having competence to investigate. So at present this court does not find any reason to interfere with the investigation and the rulings that have been cited, as stated earlier, relate to quashing of the cognizance on the ground of the investigation having been conducted by unauthorized officer. In the aforesaid circumstances and in the interest of justice, the execution of the warrant of arrest issued in Giridih Nagar P. S. Case No. 78/2003, C. R. Case No. 645/2003, by the Chief Judicial Magistrate, Giridih, against the petitioners (1. Shahnawaz Ansari and 2 Abid Raza khan) is stayed till the submission of the final form and when the final form is submitted, the petitioners may raise these issues of illegality of investigation and the court concerned will pass order thereon according to law. ( 8 ) THIS Cr. M. P. is allowed to the extent indicated above. --- *** --- .