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2011 DIGILAW 116 (PAT)

Ram Deni Devi v. State of Bihar

2011-01-18

JYOTI SARAN, R.M.DOSHIT

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JUDGMENT R.M.DOSHIT, C.J. (1) THESE four petitions filed under Article 226 of the Constitution raise common challenge to the constitutional validity of the Government Notification dated 3rd June, 2002 published in the Official Gazette of the State of Bihar on 9th August, 2008. (2) THE petitioners in C.W.J.C. No. 7489 of 2006 are the wife and the brother of the deceased Sharma Choudhary, a class IV employee of the respondent No. 6, Canara Bank. According to the writ petitioners the said Sharma Choudhary died on account of the atrocities meted to him being a Scheduled Caste person. THE petitioners have, therefore, prayed that the police be directed to register the offence under Section 3 (2) (v) read with Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act of 1989') read with Section 302 of the Indian Penal Code; that the police be directed that the investigation for the offence be made by a police officer of the rank of the Deputy Superintendent of Police. The petitioner in C.W.J.C. No. 16407 of 2007 is one Ambuj Sharma alias Ambuj Kumar Sharma, an accused in Uphara P. S. Case No. 23/2000 registered for offences punishable under the Indian Penal Code, Arms Act and under the Act of 1989. (3) THE petitioner in C.W.J.C. No. 15490 of 2008 is a person accused in Shahpur P. S. Case No. 141 of 2005 registered for offences punishable under the Indian Penal Code and the Act of 1989. (4) C.W.J.C. No. 18736 of 2008 is filed in public interest by an organization, namely, Dalit's Watch through its Secretary, Umesh Kumar Kundan. The impugned Notification has been issued by the State of Bihar in exercise of power conferred by Section 9(1) of the Act of 1989 to authorise the officers of the rank of Police Inspector, Sub-Inspector of Police and Assistant Sub-Inspector of Police to investigate the cases filed under the Act of 1989 within the State of Bihar with effect from 31 st March 1995. The impugned Notification reads as under :- "In exercise of the powers conferred by section 9(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (No. 33 of 1989) and having regard to the number of cases filed under this Act, the State Govt, authorises all the officers of the rank of Police Inspector, Sub-Inspector of Police and Assistant Sub-Inspector of Police to investigate the cases filed under this Act within the State of Bihar with effect from 31.3.95, the date of coming into force of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Rules, 1995 made under this Act. BY ORDER OF THE GOVERNOR OF BIHAR" (5) THE challenge to the Notification is mainly on the ground that the impugned Notification is violative of Section 9 of the Act of 1989 and Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as 'the Rules'). Another limb of the challenge is that the impugned Notification is ultra vires insofar as it is made retrospective with effect from 31st March, 1995. THE Notification is intended to validate the invalid actions of investigation by an officer below the rank of Deputy Superintendent of Police. It is also submitted that the impugned Notification extends beyond the power conferred upon the State Government to empower any officer of the State Government to exercise the powers of a police officer of arrest, investigation and prosecution of the persons before a special court. THE relevant Section 9 of the Act of 1989 and Rule 7 of the Rules read as under :- "Section-9. Conferment of Powers.- (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 or 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 court. (2) All officers of police and all other officers of Government 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). "Rule 7. Investigating Officer.- (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a 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 with right lines within the shortest possible time. (2) THE investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority basis 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. (6) IT may be noted that Section 9 of the Act of 1989 confers power upon the State Government to empower any Government officer to exercise the power of a police officer by notification in the Official Gazette. IT is, therefore, imperative that such notification has to be published in the Official Gazette of the State. Any notification issued in exercise of the said power unless published in the Official Gazette of the State would not be effective. In the present case though the impugned Notification was issued on 3rd June, 2002 it was not published in the Official Gazette until 9th August, 2008. IT must, therefore, be held that the impugned Notification became effective from the date of its publication in the Official Gazette i.e. on and from 9th August, 2008. The learned Advocates have also argued that the impugned Notification has been issued without application of mind i.e. without reference to the circumstances stated in Section 9 of the Act of 1989. IT must, therefore, be held that the impugned Notification became effective from the date of its publication in the Official Gazette i.e. on and from 9th August, 2008. The learned Advocates have also argued that the impugned Notification has been issued without application of mind i.e. without reference to the circumstances stated in Section 9 of the Act of 1989. In their submission it has not been issued for prevention or for coping with the offences under the Act of 1989. If at all necessary, such notification could have been issued in respect of a district or a part of a district alone and not for the entire State of Bihar. Further, Section 9 of the Act of 1989 envisages conferment of the power of a police officer of arrest, investigation and prosecution upon the officers of the Government i.e. Government officers other than police officers. (7) LEARNED advocates, Mr. Amanullah and Mr. Prasoon Sinha have appeared for the respondent-State Government. They have submitted that the State Government has made the impugned Notification retrospective in its application. Hence, an investigation made in respect of the offences punishable under the Act of 1989 by a police officer empowered under the impugned Notification, though he may be below the rank of the Deputy Superintendent of Police stands validated by the impugned Notification. It is further submitted that in any view of the matter, until the date of the Rules (i.e. 31st March, 1995) there was no restriction on investigation of offences punishable under the Act of 1989. (8) RELIANCE is placed by the learned advocates on the judgments in the matters of M/s. McDowell and Company Ltd. v. State of Bihar [ 2000 (3) PLJR 475 ]; I.T. Officer, Alleppey v. M.C. Ponnoose ( AIR 1970 SC 385 ); Kanhaiyalal v. Union of India [2008 (2) PLJR (SC) 224] : ( AIR 2008 SC 1044 ); B.S. Vadera v. Union of India and Ors. ( AIR 1969 SC 118 ); Sant Bilash Singh v. State of Bihar [ 2002 (4) PLJR 464 ]; State of Haryana v. Haryana Co-op. ( AIR 1969 SC 118 ); Sant Bilash Singh v. State of Bihar [ 2002 (4) PLJR 464 ]; State of Haryana v. Haryana Co-op. Transport Ltd. ( AIR 1977 SC 237 ); Gokaraju Rangaraju v. State of Andhra Pradesh [ (1981) 3 SCC 132 ] : ( AIR 1981 SC 1473 : 1981 Cri LJ 876); Anant Sheorey v. State of Bombay ( AIR 1958 SC 915 ): (1958 Cri LJ 1429) and Union of India v. Sukumar ( AIR 1966 SC 1206 ): (1966 Cri LJ 946). We have considered the above-referred judgments. (9) WE are unable to agree with any of the aforesaid arguments. Clause (b) of sub-section (1) of section 9 of the Act of 1989 refers to "any case or class or group of cases"; that necessarily means that the conferment of powers is not restricted to prevention of offences alone but also to deal with the offences already committed. The impugned Notification also refers to the number of cases filed under the Act of 1989. The said reference displays active application of mind to the prevailing circumstances and need for early investigation. The submission, therefore, deserves to be rejected. The said sub-section (1) further refers to "any officer of the State Government". The phrase would also include a police officer. In our view, nothing in section 9 of the Act of 1989 restricts the power of the State Government to a district or a part of a district alone. It does enable the State Government to exercise the power conferred by section 9 of the Act of 1989 in respect of a district or a part of a district, but that cannot be read to mean that such power cannot be exercised for the whole of the State. (10) SECTION 9 of the Act of 1989 starts with a non obstante clause, "notwithstanding anything contained in the Code or in any other provision of this Act". In view of the aforesaid non obstante clause, the impugned Notification issued in exercise of the power conferred by section 9(1) the Act of 1989 will have an overriding effect and cannot be held to be ultra vires the said Act. We do not need an elaborate discussion to say that the rules framed under an act are part of that enactment. We do not need an elaborate discussion to say that the rules framed under an act are part of that enactment. Therefore, the words "anything contained in the provisions of the Act" will sweep into its embrace the provisions contained in the Rules also. We may examine the matter from a different angle. The aforesaid non obstante clause in SECTION 9 of the Act of 1989 gives an overriding effect to a notification issued by State Government under that SECTION over the provisions contained in the Act of 1989. That should include SECTION 23 of the Act of 1989 and the Rules made thereunder. The impugned Notification issued in exercise of the power conferred by SECTION 9(1) of the Act of 1989, in any manner cannot be said to be ultra vires the Act of 1989 or the Rules made thereunder. The Act of 1989 has been enacted especially for protection of Scheduled Castes and Scheduled Tribes people from crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes people. The Act of 1989 does not restrict the investigation of such crimes by a particular police officer or a particular class of police officers. In other words, any police officer empowered under the Code of Criminal Procedure to investigate a crime or lodge a prosecution was competent to make arrest, investigate or lodge prosecution in respect of the crime punishable under the Act of 1989. However, by the Rules framed under sub-section (1) of Section 23 of the Act of 1989 published in the Gazette of India on 31st March, 1995 a restriction was imposed in respect of investigation of offences committed under the Act of 1989. Under Rule 7 of the Rules the police officers not below the rank of Deputy Superintendent of Police alone are empowered to investigate a crime punishable under the Act of 1989. In other words, by necessary implication, the police officers lower in rank than a Deputy Superintendent of Police are debarred from investigating such crimes. The necessary consequence would be that the investigation made in respect of such crime by a police officer lower in rank than the Deputy Superintendent of Police after the date of the Rules i.e. on and from 31st March, 1995 is unauthorized and is invalid. A prosecution lodged consequent to such investigation would fail. The necessary consequence would be that the investigation made in respect of such crime by a police officer lower in rank than the Deputy Superintendent of Police after the date of the Rules i.e. on and from 31st March, 1995 is unauthorized and is invalid. A prosecution lodged consequent to such investigation would fail. It is apparent that with a view to validating such invalid investigation and consequent unauthorized prosecution the Government of Bihar has issued the impugned Notification empowering the police officers below the rank of Deputy Superintendent of Police such as Police Inspector, Sub-Inspector of Police and Assistant Sub- Inspector of Police to investigate the crimes punishable under the Act of 1989 effective from 31st March, 1995. (11) THERE is no gainsaying that the Parliament or a State Legislature has power to enact laws and also to specify the date from which such law shall become applicable. The operation of such law may be made retrospective by an express provision or by necessary implication. But how far such law can be made retrospective in operation has to be decided in the context of the matter. In our view, the impugned Notification insofar as it confers power of investigation upon the police officers below the rank of the Deputy Superintendent of Police is valid. Its operation with retrospective effect is also valid to the extent that any offence committed prior to the date of the impugned Notification can, after the date of the impugned Notification, be investigated by a police officer who has been vested with the power of investigation though he may be of the rank below the rank of the Deputy Superintendent of Police. But to accept the argument advanced by the learned advocates Mr. Amanullah and Mr. Sinha would amount to validating the acts which were unauthorized and invalid from inception. In other words, if an investigation in such crime has been made by a police officer below the rank of the Deputy Superintendent of Police prior to the date of the publication of the impugned Notification, such investigation and consequent prosecution which were otherwise invalid cannot stand validated by the impugned Notification. (12) WE are fortified in our above view by the judgment of the Hon'ble Supreme Court in the matter of I.T. Officer, Alleppey v. M.C. Ponnoose ( AIR 1970 SC 385 ) (supra). (12) WE are fortified in our above view by the judgment of the Hon'ble Supreme Court in the matter of I.T. Officer, Alleppey v. M.C. Ponnoose ( AIR 1970 SC 385 ) (supra). In that matter in exercise of power conferred by Section 2(44) (ii) of the Income-tax Act, 1961, as it stood amended by the Finance Act, 1963, by a Notification issued on 14th August, 1963 a Tahsildar in the State of Kerala was vested with the powers of a Recovery Officer with effect from 1st April, 1962. The said Notification was published in the Official Gazette on 20th August, 1963. The action of tax recovery by the Tahsildar after 1st April, 1962 but prior to 14th August, 1963 was held to be invalid. For the aforesaid reasons, we declare that the impugned Notification dated 3rd June, 2002 is not ultra vires the Act of 1989 or the Rules made thereunder. It is further declared that the impugned Notification dated 3rd June, 2002 has become effective from the date of its publication in the Official Gazette of the State of Bihar i.e. on and from 9th August, 2008. Investigation and consequent prosecution lodged by a police officer empowered under the impugned Notification, though lower in the rank than a Deputy Superintendent of Police, on or after 9th August, 2008 will be valid although the offence in question may have been committed prior to 9th August, 2008. It is further declared that the investigation made by a police officer below the rank of a Deputy Superintendent of Police after the date of the Rules, i.e. 31st March, 1995 and prior to 9th August, 2008 and consequent prosecution will not stand validated by the impugned Notification dated 3rd June, 2002 published on 9th August, 2008. (13) C.W.J.C. Nos. 16407 of 2007; 15490 of 2008 and 18736 of 2008 are disposed of in the above terms. (14) THE parties will bear their own cost. The challenge to the validity of the impugned Notification in C.W.J.C. No. 7489 of 2006 stands answered in the above terms. In respect of the other issues raised in the petition the matter will be placed before the learned single Judge according to the roster. (15) LEARNED advocate Mr. R.K. Rajan has appeared for the petitioners in C.W.J.C. No. 7489 of 2006. In respect of the other issues raised in the petition the matter will be placed before the learned single Judge according to the roster. (15) LEARNED advocate Mr. R.K. Rajan has appeared for the petitioners in C.W.J.C. No. 7489 of 2006. He requests that leave to appeal before the Supreme Court be granted under Article 134-A of the Constitution. Leave is refused. (16) HE further requests that implementation of this order be stayed for a period of 60 days. The request is rejected. Order accordingly.