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2004 DIGILAW 136 (ORI)

Chandra Sekhar Pani v. State of Orissa

2004-03-09

L.MOHAPATRA

body2004
JUDGMENT L. MOHAPATRA, J. — All the above cases were taken up together for hearing since they involve same question of law. 2. Question of law relates to interpretation of Rule-7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atroci¬ties) Rules, 1995 (hereinafter called ‘the Rules’). The said Rule provides that an offence committed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereina¬fter called ‘the Act’) shall be investigated by a police officer not below the rank of Deputy Superintendent of Police. Question raised before this Court is as to whether an offence committed under the Act and investigated by an officer below the rank of D.S.P. is illegal so as to vitiate the trial if the same has not caused any prejudice to the accused. 3. Rule 7 of the aforesaid Rules only relates to an offence committed under the aforesaid Act and does not have general application. Section 4 of the Code of Criminal Procedure prescribes that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Cr.P.C. It further provides that all offences under any other law shall be investi¬gated, 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 lace of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Cr.P.C. is the saving provision and prescribes that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Bare reading of the aforesaid two provisions clearly indicate that when a special law prescribe for a special form or procedure, the procedure con¬tained in the Cr.P.C. is not to be followed. Only when a special law or local law does not provide for procedure or dealing with offence under the said special or local Act, the procedure con¬tained in the Cr.P.C. is to be followed. There is no dispute that the SC and ST (PA) Act, 1989 is a special Act and provides for a special procedure. Only when a special law or local law does not provide for procedure or dealing with offence under the said special or local Act, the procedure con¬tained in the Cr.P.C. is to be followed. There is no dispute that the SC and ST (PA) Act, 1989 is a special Act and provides for a special procedure. Section 9 of the Act confers power on the State Government to make such provisions in respect of the mat¬ters as indicated in the said Section. Section 9 as stated above is quoted below : “(1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do,- (a) for the prevention of and for coping with any offence under this Act, or (b) for any case or class of group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Act. (2) All officers of police and all other officers of Govern¬ment shall assist the officer referred to in Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder. (3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub-section (1).” Similarly Section 23 of the Act empowers the Central Govern¬ment to make such Rules for carrying out the purposes of the Act and in exercise of such powers the Central Government has framed SC and ST (PA) Rules, 1995. Rule 7 of the said Rules prescribes as follows : “(1) An offence committed under the Act shall be investigat¬ed by a Police Officer not below the rank of a Deputy Superinten¬dent 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 with right lines within the shortest possi¬ble time. 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 with right lines within the shortest possi¬ble 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 investiga¬tions done by the Investigating Officer.” Learned counsel for the State Government referring to the Rule 7 submitted that even though said Rule specifically provides that an offence committed under the Act shall be investigated by a police officer not belonging to the rank of Deputy Superintendent of Police, in a given case where such investigation is done by an officer below the rank of D.S.P. and such investigation has not caused any prejudice to the accused, the irregularity committed by the Investigating Agency cannot be a ground for quashing a pro¬ceeding initiated for commission of an offence under the Act or vitiate the proceeding. 4. This question came up for consideration before this Court in a batch of cases reported in (2002) 22 OCR 92 *(Sessions Judge-cum-Special Judge, Cuttack, etc -v- State of Orissa). In one of the cases in which the decision was rendered, reference was made by the learned Sessions Judge-cum-Special Judge, Cuttack under Section 395 of the Cr.P.C. to decide as to (1) whether the case would be dropped for non-compliance of Rule 7 of the Rules as aforesaid and (2) as to whether further progress in the case under the Act pending in the Special Courts is bad without com¬mittal proceeding in view of the principle enunciated in a deci¬sion of this Court reported in (2000) 18 OCR 364. For our purpose question No.1 raised in the referene is relevant. For our purpose question No.1 raised in the referene is relevant. In para-6 of the judgment this Court held that investigation into the offence under Section 3 of the Act is to be done by the designated police officer as provided in Rule 7 and if such an investigation has not been done in accordance with Rule 7, the investigation is null and void and the trial is vitiated. While deciding the re¬ference, the Court referred to a decision of the Madras High Court as well as a decision of the Andhra Pradesh High Court. Same question again came up for consideration before this Court in the case of Maheswar Panda another -v- State of Orissa and others,* reported in (2003) 24 OCR 135. In the said case this Court held that investigation into an offence under Section 3 of the Act by an officer not appointed in terms of the said provision of law is illegal and invalid. However, the Court held that where the acts complained of are not only under the Special Act but also in respect of certain offences under the provisions of the I.P.C., investigation into other offences under the I.P.C. need not be quashed if the officer is competent to investigate under the Cr.P.C. Same question again came up for consideration before this Court in the case of Ranjit @ Rajat Kumar Das and others -v- State of Orissa,** reported in (2003) 25 OCR 459. In the aforesaid reported case offence under Section 3 of the Act was alleged to have been committed. Investigation was taken up by a Sub-Inspec¬tor after registering the case and subsequently a Deputy Superin¬tendent of Police was appointed as Investigating Officer. After perusing the case diary of previous Investigating Officer and testing some witnesses already examined, charge-sheet was submit¬ted by the D.S.P. This Court held that submission of such charge-sheet cannot be said to be on the basis of the investigation taken by the D.S.P. and quashed the proceeding for non-compliance of Rule 7 of the Rules. 5. After perusing the case diary of previous Investigating Officer and testing some witnesses already examined, charge-sheet was submit¬ted by the D.S.P. This Court held that submission of such charge-sheet cannot be said to be on the basis of the investigation taken by the D.S.P. and quashed the proceeding for non-compliance of Rule 7 of the Rules. 5. Faced with the aforesaid two decisions learned counsel for the State referring to a decision of the Apex Court in the case of Union of India -v- Prakash P. Hinduja and another, re¬ported in AIR 2003 S.C. 2612 submitted that even though the Act and the Rules provide special procedure to be followed for the purpose of investigation, an error or illegality in investigation has no impact on trial unless miscarriage of justice is brought out. Relying on the said decision it was further contended by the learned counsel for the State that if an offence under the Act is investigated into by an officer below the rank of D.S.P. it may at best be called an error or illegality and unless such illegal¬ity has caused miscarriage of justice, it has no impact on the trial and the trial cannot be vitiated on that ground alone. The Apex Court in para-20 of the judgment held as follows : “An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the Court may also be examined. Section 5-A of the Preven¬tion of Corruption Act, 1947 provided that no Police officer below rank of a Deputy Superintendent of Police shall investigate any offence punishable under Sections 161, 165 and 165-A I.P.C. or under Section 5 of the said Act without the order of a Magis¬trate of the First Class. In H.N. Rishbu (supra) the investiga¬tion was entirely completed by an officer of the rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prose¬cuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prose¬cuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed and the following principle was laid down : ‘The question then requires to be considered whether and to what extent the trial which follows such investigation is viated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading ‘conditions requisite for initiation of proceedings’. The lan¬guage of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. Ss. 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Cls. (a), (b) and (c) of Section 190(1) are condi¬tions requisite for taking of cognizance, it is not possible to say that cognizance of an invalid police report is prohibited and is therefore a nullity. But Section 190 does not. While no doubt, in one sense, Cls. (a), (b) and (c) of Section 190(1) are condi¬tions requisite for taking of cognizance, it is not possible to say that cognizance of an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Cl.(a) or (b) or Sec. 190(1) (whether it is one or the other we need not pause to consider) and in any case cog¬nizance so taken is only in the nature of error in a proceeding antecedent to the trial.’ The Court after referring to Parch -v- Emperor, AIR 1944 PC 73 and Lumbhardar Zutshi -v- King, AIR 1950 PC 26 held that if cognizance is in fact taken on a police report initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. This being the legal position, even assuming for the sake of argument that the CBI committed an error or irregularity in submitting the charge-sheet without the approval of CVC, the cognizance taken by the learned Special Judge on the basis of such a charge-sheet could not be set aside nor further proceed¬ings in pursuance thereof could be quashed. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the offence and in quashing further proceedings of the case.” 6. Referring to the aforesaid decisions it was contended by the learned Additional Standing Counsel that even if investigating agency commits an error or irregularity in the investigation and submits a charge-sheet cognizance taken by the Court on the basis of such charge-sheet cannot be set aside nor further proceeding in pursuance thereunder could be quashed. Learned counsel appearing for the petitioners, on the other hand, submitted that the ratio laid by the Apex Court in the aforesaid decision has no application to the facts of the present case. Learned counsel appearing for the petitioners, on the other hand, submitted that the ratio laid by the Apex Court in the aforesaid decision has no application to the facts of the present case. It was contended by the learned counsel for the petitioners that in the aforesaid reported decisions charge-sheet filed by the C.B.I. was challenged on the ground that there was no observance or violation of terms issued regarding functioning and responsibili¬ty of CVC. It was further contended that the directions relate to inter-departmental work and the manner in which power of superin¬tendence has to be exercised by CVC over the work of C.B.I. the entire object being to insulate the C.B.I. from any extraneous influence so that it performs its duties under the Delhi Special Police Establishment Act. The question raised before the Apex Court was whether in the case of Vineet Narain -v- Union of India, reported in AIR 1998 SC 889 the Court really meant to lay down as a principle of law that in every case result of the investigation done by the C.B.I. has to be placed before the CVC and further before submission of charge-sheet in Court the same has to be examined which is also required to give some sorts of approval and concurrence and if the same was not done whether the charge-sheet so submitted would be a nullity in the eyes of law or would be of such a nature on which cognizance could not be taken or if the cognizance was taken by the Court the same would be illegal and could not form the basis for trial of the accused. Learned counsel also submitted that the procedure that was re¬quired to be followed was by way of judgment of the Court in the case of Vineet Narayan -v- Union of India (supra) and it was only a direction. So far as the present case is concerned, it has con¬tended that there being a statutory provision providing for investigation to be done by an officer not below the rank of Deputy Superintendent of Police, the present case cannot be equated with that of the decision in the case of Union of India -v- Prakash P. Hinduja (supra). 7. Since the question raised before this Court relates to Special Act, it is worthwhile to refer to some decisions dealing with Special Acts. 7. Since the question raised before this Court relates to Special Act, it is worthwhile to refer to some decisions dealing with Special Acts. In the case of State of Haryana and others -v- Ch. Bhajan Lal and others, reported in AIR 1992 SC 604 , the Apex Court while dealing with Prevention of Corruption Act observed as follows : “The Superintendent of Police or any police officer of above rank while granting permission to a non-designated police officer in exercise of his power under the second proviso to S.5A(1), should satisfy himself that here are good and sufficient reasons to entrust the investigation with such police officer of a lower rank and record his reasons for doing so; because the very object of the legislature in enacting S.5A is to see that the investiga¬tion of offences punishable under Ss. 161, 165 or 165A of Penal Code as well as those under S.5 of the Prevention of Corruption Act should be done ordinarily by the officers designated in clauses (a) to (d) of Section 5A(1). The exception should be for adequate reasons which should be disclosed on the fact of the order. In this connection, it is worthy to note that the strict compliance with S.5A(1) becomes absolutely necessary, because S.5A(1) expressly prohibits police officers, below certain ranks, from investigating into offences under Ss. 161, 165 and 165A, IPC and under S.5 of the Corruption Act without orders of Magistrates specified therein or without authorisation of the State Govern¬ment in that behalf and from effecting arrests for those offences without a warrant. Where the Order directing an Inspector was one or order “investigate” in respect of offences under S.5(1)(e) of Corrup¬tion Act and Ss. 161 and 165 of Penal Code, the Inspector was not clothed with valid legal authority to take up the investigation and proceed with the same within the meaning of S.5A(1) of the Prevention of Corruption Act.” In the case of State of Uttar Pradesh -v- Bhagwant Kishore Joshi reported in AIR 1964 S.C. 221 again same question relating to provisions contained in the Prevention of Corruption Act, 1947 came up for consideration. Majority view of the Apex Court in the aforesaid decision is quoted below : “Section 5A of the Prevention of Corruption Act, 1947, is enacted for preventing harassment to a Government servant and with this object in view investigation, except with the previous permission of a Magistrate, is not permitted to be made by an officer below the rank of a Deputy Superintendent of Police. The said statutory safeguards must be strictly complied with, for they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecution.” “A practice, if it exists, is to be condemned when such practice enables a police officer below the rank of Deputy Super¬intendent of Police to make an investigation free from the statu¬tory safeguards (such as S.5A of the Prevention of Corruption Act, 1947) designed to prevent the abuse of police powers, to secure the necessary information and thereafter to take the requisite permission of the Magistrate and then to shape his investigation to achieve the desired result or to implement his scheme. However, the question in such a case is not whether in investigating an offence the police have disregarded the provi¬sions of the Act, but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial. It is, therefore, necessary for the accused to throw a reasonable doubt that the prosecution evidence is such that it must have been manipulated or shaped by reason of the irregularity in the matter of investigation, that he was prevented by reason of such irregu¬larity from putting forward his defence or adducing evidence in support thereof. It is, therefore, necessary for the accused to throw a reasonable doubt that the prosecution evidence is such that it must have been manipulated or shaped by reason of the irregularity in the matter of investigation, that he was prevented by reason of such irregu¬larity from putting forward his defence or adducing evidence in support thereof. But where the prosecution evidence has been held to be true and there the accused had full say in the matter, the conviction cannot be obviously set aside on the ground of some irregularity or illegality in the matter of investigation; there must be a sufficient nexus, either established or probabilized, between the conviction and the irregularity in the investigation.” In the case of Nilratan Sircar -v- Lakshmi Narayan Ram Niwas, reported in AIR 1965 S.C. 1 while dealing with the provi¬sions contained in Foreign Exchange Regulation Act, 1947 the Apex Court held as follows : “Section 5 Criminal P.C. provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure, 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. The Foreign Exchange Regu¬lation Act is a Special Act and it provides under S. 19-A for the necessary investigation into the alleged suspected commission of an offence under the Act, by the Director of Enforcement. The provisions of the Code of Criminal Procedure therefore will not apply to such investigation by him.” In the case of Sk. Sakaout and others -v- State of Orissa,* reported in (1991) 4 OCR 610, this Court while dealing with the provisions contained in the Narcotic Drugs and Psychotropic Sub¬stances Act, 1985 held as follows : “Secs. 41(2), 42(1) and 53 contain provisions authorising officers specified therein to conduct investigation and to do such acts as enumerated therein. It is alleged that the officer who arrested the petitioners and conducted the investigation had not been empowered by appropriate notification to take action under the Act. The State of Orissa by notification dated 23.3.1988 empowered all officers above the rank of Sub-in¬spector of the Excise Department of the State to exercise the powers and perform the duties specified in the said sections. The State of Orissa by notification dated 23.3.1988 empowered all officers above the rank of Sub-in¬spector of the Excise Department of the State to exercise the powers and perform the duties specified in the said sections. Section 82 repealed the Opium Act, 1878 but provided in Sub-sec.(2) that the repeal would not affect anything done or any action taken or purported to have been done or taken under the repealed enactment in so far as the same is not inconsistent with the provisions of the NDPS Act and shall be deemed to have been done and taken under the corresponding provisions of the Act. It, therefore, follows that with effect from 14.11.1985, the Opium Act stood repealed and no action under the Opium Act had been taken prior to its repeal by Sec.82. The allegations are that the petitioners had committed an offence under Sec. 18 of the Act. Hence, the procedure that is prescribed in Chapter V, namely, Secs. 41(2), 42(1) and 53(2) were applicable. There is no dis¬pute that by the date of occurrence, the officer who took action by way of arrest, investigation etc. had not been empowered to do so by a notification issued by the State Government under the NDPS Act. Hence, the investigation was ultra vires.” 8. In the case of Union of India -vs- Prakash P. Hinduja (supra) the Apex Court took into consideration its earlier deci¬sions, such as Emperor -v- Nazir Ahmad, reported in AIR 1945 PC 18 and H.N. Rishbud & Inder Singh -v- State of Delhi, reported in AIR 1955 SC 196 . Learned Additional Standing Counsel referring to the aforesaid decisions submitted that the principles laid down in the case of Prakash P. Hinduja is only a repetition of what had been decided by the Apex Court in the aforesaid two decisions. Therefore, the principles laid down by the Apex Court in the case of Prakash P. Hinduja is not a view taken by the Apex Court for the first time but only confirms the earlier decision of the same Court. Therefore, the principles laid down by the Apex Court in the case of Prakash P. Hinduja is not a view taken by the Apex Court for the first time but only confirms the earlier decision of the same Court. It was specifically submitted by the learned Additional Standing Counsel that the case of H.N. Rishbud and Inder Singh -v- State of Delhi (supra) relates to Prevention of Corruption Act and the Apex Court in the said case held that mere illegality or irregularity in investigation will not be a ground for quashing an order of cognizance unless Court is satisfied that such investigation has resulted in miscarriage of justice. But at the same time the Court cannot also lose sight of discus¬sions made by the Apex Court in the case of State of Haryana -v- Ch. Bhajan Lal and others (supra). The earlier decisions to which reference has been made in the case of Prakash P. Hinduja have also been taken into consideration by the Apex Court in the case of Ch. Bhajan Lal. So far as the case of Prakash P. Hinduja is concerned, there is no dispute that the question of violation of any statutory rule was not the subject matter of discussion, whereas in the present case the question raised is whether viola¬tion of a statutory provision shall vitiate the trial which is based on investigation made by an officer who is not competent to do so. The Apex Court in the case of Ch. Bhajan Lal not only took into consideration the earlier decision referred to in the case of Prakash P. Hinduja but also took a view contrary to what had been decided in the case of H.N. Rishbud & Inder Singh (supra). Rule 7 of the Rules not only provides that an offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police, but also it provides that such investigating officer shall be ap¬pointed by the State Government/Director-General of Police/Super¬intendent of Police after taking into account his past experi¬ence, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. The provision clearly indicates the intention of the Legislature to get the offence committed under the Act, investigated by an officer who is not only experienced but also has sense of ability and justice to perceive the impli¬cations of the case and investigate it along with right lines within the shortest possible time. Had it not been the intention of the Legislature there was no reason for making such a provi¬sion in the Rules and offence under the Act could be tried by any police officer competent to investigate under the Code of Crimi¬nal Procedure. There is no dispute that if statute provides for a particular thing to be done in a particular way the same should be done in the way it is provided for or it should not be done at all. The facts leading to the ratio decided by the Apex Court in the case of Prakash P. Hinduja will have no application to the present facts of the case since the present case relates to violation of a statutory provision with regard to investigation, whereas in the case of Prakash P. Hinduja there was only contra¬vention of the directions of the Apex Court given in the case of Vineet Narayan -v- Union of India (supra). 9. In course of hearing of the case, the letter issued by the Director-cum- I.G. of Police, HRPC, Orissa, Cuttack addressed to All Superintendents of Police dated 22.3.2001 was brought to the notice of the Court. Said letter indicates that the Government in Home Department vide letter dated 23.9.2000 have clearly instructed that investigation in all cases regis¬tered under the Act must be done by an officer not below the rank of Deputy Superintendent of Police in terms of Rule 7 of the Rules. The instructions were issued only after the State Govern¬ment’s prayer for modification of the above rule was turned down by the Government of India. From the said letter it is clear that the State Government had requested the Government of India to modify the Rule i.e. Rue-7 of the Rules, but the same was turned down by the Government of India keeping in mind the legislative intention behind enactment of such a Rule. 10. Keeping in mind the discussions made above, I am of the view that violation/contravention of Rule 7 of the Rules will entail an investigation illegal and shall vitiate trial. 10. Keeping in mind the discussions made above, I am of the view that violation/contravention of Rule 7 of the Rules will entail an investigation illegal and shall vitiate trial. There¬fore, cognizance taken on the basis of charge-sheet submitted by an officer not competent to investigate a case under the Act has to be quashed and direction has to be issued for re-investigation by a competent officer. Accordingly, all the criminal misc.cases are allowed, orders taking cognizance in the respective cases are quashed, and it is directed that the cases shall be investigated afresh by an officer competent under the Rule. Crl. Misc. Cases allowed.