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2011 DIGILAW 149 (CHH)

HORILAL v. STATE OF M. P.

2011-04-18

PRITINKER DIWAKER

body2011
JUDGMENT 1. This appeal is directed against the judgment and order dated 18.10.1996 passed by Special Judge, Raipur in Special Case No. 128/1996 convicting the accused/appellants for the offence punishable under Section 3 (1) (X) read with 34 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short the "Act") and sentencing each of them to undergo rigorous imprisonment for six months and pay fine of Rs. 500 in default of payment of fine to further undergo simple imprisonment for three months. 2. Facts of the case in brief are that on 1.11.1995 FIR (Ex. P-1) Vi as lodged by Ram Bagas (PW-1) alleging that on 31.10.1995 at about 8 p.m. cattle of one Indal had damaged the crop of Chandulal and when he along with some other persons namely Chanulal, Khorbahra and Asaram was taking the cattle to the cattle pond, one of the cattle sat down near the house of one Horilal and during this period, the accused/appellants came out from their house and asked them to release the cattle. It is alleged that some altercation took place between both the parties in which accused/appellants abused the complainant using filthy language and calling Chamar. Based on this FIR, offence was registered under Section 3 (1) (X) of the Act and after completion of investigation challan was filed by the police on 18.1.1996 for the said offence. However, the charge has been framed by the Court below under Section 3 (l) (X) read with 34 of the Act. . 3. So as to hold the accused/appellants guilty, prosecution has examined 07 witnesses in support of its case. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the. case. This apart, one Ram Ratan (DW-l) has also been examined by the defence in support of its case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellants as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the appellants submits that in the case in hand the investigation has been done by M.S. Baghel (PW-6) who at the relevant time was holding the post of Sub Inspector in the Police Department whereas charge sheet was tiled by another Sub Inspector namely Ram Krishna Singh (PW-7). 5. Counsel for the appellants submits that in the case in hand the investigation has been done by M.S. Baghel (PW-6) who at the relevant time was holding the post of Sub Inspector in the Police Department whereas charge sheet was tiled by another Sub Inspector namely Ram Krishna Singh (PW-7). He submits that Rule 7 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995 (for short the "Rules") the investigation ought to have been conducted by the police officer not below the rank of Deputy Superintendent of Police specially authorized by the State Government/Director General of Police/Superintendent ofPo1ice. He submits that when the investigation itself is faulty, entire proceedings are vitiated and the accused/appellants deserve to be acquitted on this ground alone. 6. On the other hand counsel for the respondent/State opposes the submissions made by the counsel for the appellants. He however admits that the investigation has been done by M.S. Baghel (PW-6) Sub Inspector in the police department and the challan has been filed-by-aifuther Sub inspector namely Ram Krishna Singh (PW-7). 7. First of all, reference of Rule 7 of the Rules, 1995 appears to be a necessity for disposal of the case in hand, which reads as under: "7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a police officer not below 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 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." While dealing with an identical question in the matter of T. Hanmanthu Vs. State of A.P. it has been held by the Andhra Pradesh High Court asunder: "4. State of A.P. it has been held by the Andhra Pradesh High Court asunder: "4. It is not in controversy that the date of offence is 27.4.1996. The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 came into force from 1.4.1995. PW. 5, Assistant Sub Inspector, had investigated into the offences with which the accused had been charged with and recorded the statements of witnesses. It is no doubt true that Rule 7 has no retrospective operation. Investigation prior to there to in relation to offences under the SC & ST (POA) Act also was being conducted by regular investigating agency but, however, specific rule i.e. Rule 7 was introduced by which the specified officer has to conduct investigation. This check was introduced by putting a specific bar in conduct of investigation by other investigating officers to be investigated with better care and caution, more concerned with social compulsions, order and disorder and hence, if investigation is entrusted to a higher officer, the same may be proceeded with on sound lines. Be that as it may, apart from this aspect of the matter, cognizance was taken by the learned Special Judge straightway and hence due to non committal of the case in view, c1ear language of Section 193 Cr.P.C., the whole trial is vitiated. Viewed from any angle, the conviction and sentence imposed as against the appellant accused cannot be sustained and accordingly, they are set aside." In another decision of the Andhra Pradesh High Court in the matter of D. Ramalinga Reddy @ D. Babu Vs. State of A.p.1 it has been held as under: "7. The learned senior Counsel appearing for the appellant submits that since the prosecution was initiated under the provisions of Scheduled Caste and Scheduled Tribes (prevention of Atrocities) Act, the investigation should have been conducted by an officer not below the rank of Deputy Superintendent of Police. He submits that any investigation which has to be conducted into the allegations made under the said Act has to be made in accordance with the Rules known as Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. These rules have been framed by the Central Government in exercise of rule making power. conferred under Section 23 of the Act. These rules have been framed by the Central Government in exercise of rule making power. conferred under Section 23 of the Act. The Central Government has been authorized under Section 23 (1) of the Act to make rules for carrying out the purposes of the Act. Since the purpose and objective sought to be attained by the Act is to minimize the offences against Scheduled Castes and Scheduled Tribes therefore it prescribes stringent sentences also. Therefore, in order to ensure any misuse of the Act, Rule 7 of the Rules lays down not only that the investigation should be done by an officer not below the rank of Deputy Superintendent of Police but also lays down that such officer should be specially appointed by the State Government for investigating the offences under the Act. It further lays down that while appointing such officers the Government should take into consideration his past experience, sense of ability and justice to perceive the implications of the case. On bare perusal of Rule 7 of the Rules it becomes abundantly clear that even all Deputy Superintendents of Police cannot investigate offences under S.Cs or S.Ts. (Prevention of Atrocities) Act. Only those officers who are not below the rank of Dy. Superintendent of Police and are specially appointed by the State Government or the Director General of Police or Superintendent of Police are competent for the purpose of investigating the cases under the Act. This order of appointment can either be specific or general." "8. There is no dispute that the present case was investigated by a Sub Inspector of Police and not by an officer envisaged under Rule 7. Since the investigation itself has been conducted by an officer who was not authorized in law to conduct the investigation the whole trial is vitiated. The same view has been expressed in a judgment of Madras High Court reported m N Ramu v. Supdt. Of Police Villupuram, Therefore conviction of the appellant for the offence under Section 3 (1) (xi) of S.Cs & S.Ts. (prevention of Atrocities) Act has to be set aside and is accordingly set aside and the accused/appellant is acquitted of the charges under the Act." In the matter of Kailas Govind Wadekar & Ors. Vs. State of' Maharashtra2 it has been held by the Bombay High Court as under: "4. (prevention of Atrocities) Act has to be set aside and is accordingly set aside and the accused/appellant is acquitted of the charges under the Act." In the matter of Kailas Govind Wadekar & Ors. Vs. State of' Maharashtra2 it has been held by the Bombay High Court as under: "4. In this case, the conviction under Atrocities Act is challenged on various grounds. Firstly, Adv. Shri Tamke for the appellants argued that in this case the investigation is carried out by the P.S.I, which ought to have been carried out by a person of the rank of Dy. Superintendent of Police or above. I may refer to Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, which lays down that when offence is committed under the said Act, the investigation shall be carried out by the Police Officer, not below the rank of Dy. Superintendent of Police. This Court has held in Asiskhan Pathan Ys. State of Maharashtra, 2006 All MR (Cri) 796: (2006 (6) AIR Bom R 220) and Uttamlal Yema Vs. State of Maharashtra, 2006 All MR (Cri) 1015 : (2006 (4) AIR Bom R 20) that the investigation carried out by the Police officer of lesser rank is vitiated. Another reason on which the order of conviction under the Atrocities Act..." Fortifying the aforesaid views of the High Courts it has been held by the Supreme Court in the matter of State of MP. Vs. Cunnilal @ Chunni Singh3 as• under: "6. By virtue of its enabling power it is the duty and responsibility of the State Government to issue notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of Police for different areas in the police districts. Rule 7 of the Rules provided rank of investigation officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer. The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read lead to an irresistible conclusion that the investigation to an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid. The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read lead to an irresistible conclusion that the investigation to an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid. But when the offence complained are both under the IPC and any of the offence enumerated in Section 3 of the Act the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non investigation of the offence under Section 3 of the Act by a competent police officer. In such a situation the proceedings shall proceed in appropriate Court for the offences punishable under the IPC notwithstanding investigation and the charge sheet being not liable to be accepted only in respect of offence under Section 3 of the Act for taking cognizance of that offence." Further confirming the aforesaid views of the High Courts it has been held by the Supreme Court in the matter of State of Punjab Vs. Hardial Singh & Ors4 as under: "5. As is rightly contended by learned counsel for the appellant-State the order is very confusing. Be that as it may the only question is whether investigation done by the police officer specifically authorized to do so in terms of the Rule 7 is illegal qua offences not relatable to any provision under the Act. Recently, the controversy of the present nature was decided by this Court in State of MP. v. Chunnilal @ Chunni Singh (Criminal Appeal No. 943 of 2003) decided on 15.4.2009 (reported in 2009 AIR SCW 5335). Dealing with an identical question in the matter of State of A.P. Vs. SViswanadula Chetti Babu WITH State of A.P. Vs. Mekala Kuppamma & Anr.5 the Supreme Court held thus: "3. A bare perusal of the Rule would reveal that the State Government/the Director General of Police/Superintendent of Police after taking into account the experience etc. of a Deputy Superintendent of Police shall appoint him as the Investigating Officer in cases under the above Act. Mekala Kuppamma & Anr.5 the Supreme Court held thus: "3. A bare perusal of the Rule would reveal that the State Government/the Director General of Police/Superintendent of Police after taking into account the experience etc. of a Deputy Superintendent of Police shall appoint him as the Investigating Officer in cases under the above Act. Sub-rule (3) further provides that the Home Secretary and the Social Welfare Secretary to the Government and other officers in charge shall review the working of the Deputy Superintendent of Police and the investigations done by him at the end of every quarter. It is therefore apparent that authority to investigate has to be conferred on a specified officer not below the rank of Deputy Superintendent of Police." "4. We are, therefore, of the opinion that in view of the clear mandate of the Rules it was only a specified Deputy Superintendent of Police who could investigate an offence under the Act. An investigation done by any officer below that rank and not specified as per Rule 7 would not be entitled to investigate any such offence. In the present matter the investigation has been made by an officer of the rank of an Assistant Sub Inspector of Police. This was not permissible. We endorse the judgment of the High Court in this respect." 8. M.S. Baghel (PW-6) - Sub Inspector, Scheduled Caste Welfare Cell, Raipur has admitted the fact that after receiving the diary he carried out the entire investigation. Thus there is no dispute that the investigation was not done by the Deputy Superintendent of Police and that being so there is utter violation of Rule 7 of the Rules, 1995 adumbrated in the preceding paragraph of this judgment. 9. A bare perusal of the said Rule reveals that State Government/Director General of Police/Superintendent of Police, after taking into account the past experience, sense of ability and justice to perceive the implications of the case etc. of the Deputy Superintendent of Police shall appoint him as Investigating Officer for an offence under the Special Act. Sub Rule 2 of Rule 7 further provides that 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 I the report to the Director General of Police of the State Government. 10. Sub Rule 2 of Rule 7 further provides that 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 I the report to the Director General of Police of the State Government. 10. Thus in view of the clear mandate of Rule 7 of Rules, 1995 and the decisions of the Supreme Court and various High Courts referred to above it is only the Deputy Superintendent of Police who is competent to investigate the offence under this special Act. Undisputedly, in the case in hand, the entire investigation has been carried out by the Sub Inspector of Police, which is in flagrant violation of the legal provision and renders the entire trial as vitiated. 11. Consequently, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellants are acquitted of the charge levelled against them. They are on bail. Their bail bonds stand discharged. Appeal Allowed.