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2012 DIGILAW 669 (JHR)

Arun Kumar Burnwal v. State of Jharkhand

2012-04-30

H.C.MISHRA

body2012
Judgment Heard the learned counsel for the petitioners and the learned counsel for the State. 2. Petitioners have challenged the order dated 31.5.2010 passed by the learned Sessions Judge-cum-Special Judge, SC & ST (Prevention of Atrocities) Act, Giridih, whereby, the application filed under Section 228 of the Cr.P.C on behalf of the accused petitioners was rejected by the Court below. 3. It appears that the petitioners have been made an accused in Dumri P.S Case No. 36 of 2007, for the offence under Sections 147, 148, 149, 341, 342, 323, 324, 379, 307, 504, 376/ 511, 427, 447 of the Indian Penal Code and 3 / 4 of the SC & ST (Prevention of Atrocities) Act (herein after referred to as the ‘Act’). It appears that the case was investigated by the Deputy Superintendent of Police Headquarters, Giridih, who had submitted the charge-sheet in the case for the offence under Sections 147, 148, 149, 341, 342, 323, 504/ 427 of the Indian Penal Code and 3 (I) (ii) (iii) (v) (x) of the Act. It further appears that the petitioners were put to trial in S.T Case No.470 of 2008, wherein the petitioners filed the application under Section 228 of the Cr.P.C, stating that the investigation made by the Deputy Superintendent of Police for the offences under the Act was absolutely illegal, inasmuch as, the said Deputy Superintendent of Police was not appointed under Rule 7 of the SC & ST (Prevention of Atrocities) Rules (herein after referred to as the ‘Rules’), and accordingly, the prayer was made that no charge can be framed against the petitioners under Sections 3 (I) (ii) (iii) (v) & (x) of the Act. It was submitted that the case be transferred to the competent court for trial for the offences under the I.P.C. The said application was dismissed by the Court below, holding that under Rule 7 of the Rules, the Deputy Superintendent of Police is authorized to investigate the case and in view of the fact that the investigation of the case was done by an officer of the rank of Deputy Superintendent of Police, there was no illegality in the same and the application filed by the petitioners was rejected by the Court below. 4. 4. Learned counsel for the petitioners submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch Rule 7 of the Rules clearly prescribes that the cases under the Act shall be investigated by the police officer not below the rank of Deputy Superintendent of Police and the investigating officer shall be appointed by the State Government / Director of 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 along-with right lines within the shortest possible time. Learned counsel further submitted that no notification under Rule 7 of the said Rules was issued either by the State Government or the Director General of Police / Superintendent of Police authorizing the investigating officer to investigate the case and accordingly, even though the investigation of the case has been done by an officer of the rank of Deputy Superintendent of Police, the same is absolutely illegal. Learned counsel accordingly, submitted that the charge-sheet submitted against the petitioners for the offences under the Act is fit to be quashed and the case be remitted back to the appropriate Court for trial of the petitioner for the offences under the Indian Penal Code. In support of his contention, learned counsel for the petitioners has placed reliance upon the decision of the Supreme Court of India in State of M.P.-Vs.-Chunnilal @ Chunni Singh, reported in 2009 (2) East Cr C 290 (SC) : 2009 (12) SCC 649 , wherein, it has been held that 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 the notified police officer not below the rank of Deputy Superintendent of Police. Placing reliance on this decision, learned counsel submitted that the impugned order passed by the learned Trial Court cannot be sustained in the eyes of law. 5. By order dated 21.03.2012, learned A.P.P appearing for the State was granted two weeks' time for filing counter affidavit bringing on record the notification to the effect that the said Deputy Superintendent of Police was appointed for investigation of the cases under the provisions of the Act. It was made clear that if the counter affidavit was not filed, the matter would be decided on its own merits. It was made clear that if the counter affidavit was not filed, the matter would be decided on its own merits. Subsequently, by order dated 9.4.2012, at the request of the learned counsel for the State, again two weeks' time was granted for brining on record the said notification, whereby, the Deputy Superintendent of Police was vested with the powers of investigation of the cases under the provisions of S.C / S.T (Prevention of Atrocities) Act. The copy of the said order was also sent to the learned Advocate General for getting the notification within two weeks, making it clear that failing therein, the matter would be decided treating that there was no such notification issued by the State Government under Rule 7 of the S.C / S.T (Prevention of Atrocities) Rules. It was also made clear that such notification was being asked for, in view of the decision of the Apex Court, reported in 2009 (12) SCC 649 . 6. Pursuant to the said order, counter affidavit has been filed on behalf of the State Government, whereby, Annexure-A/1 has been brought on record, which is a notification of transfer and posting of the officers of the rank of Deputy Superintendent of Police, which only shows that by the said notification, Shri Anuranjan Kispota, the Deputy Superintendent of Police (who is an I.O of the present case), who was the then posted at Chas, was transferred and posted as Deputy Superintendent of Police, Police Headquarters, Giridih. There is nothing in this notification to show that he was also authorized/appointed under Rule 7 of the Rules to investigate the cases under the Act. Annexure A has also been brought on record by the learned counsel for the State which only goes to show that the then S.P had issued a letter, being letter No.2551/C dated 08.7.2005, authorizing Sri Anuranjan Kispota to investigate and supervise the cases of Dumri Circle including the Dumri Police station, where the F.I.R of the present case was lodged. The said letter No.2551/C dated 08.7.2005 has not been brought on record, but the letter was available with the learned State Counsel for the State, which he read out and in the said letter, there is no mention about authorizing him for investigation of the cases under the S.C / S.T (Prevention of Atrocities) Act. 7. The said letter No.2551/C dated 08.7.2005 has not been brought on record, but the letter was available with the learned State Counsel for the State, which he read out and in the said letter, there is no mention about authorizing him for investigation of the cases under the S.C / S.T (Prevention of Atrocities) Act. 7. Thus, it is clear that nothing has been brought on record by the respondent State, in spite of giving sufficient indulgence for the same, that notification has been issued by the State Government under the provisions of Rule 7 of the Rules, which prescribes as follows :- “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. ** ** **” (Emphasis supplied). 8. From the bare reading of the said Rule, it is apparent that either the State Government or the Director General of Police or the Superintendent of Police has to appoint an Officer not below the rank of Deputy Superintendent of Police for investigating the cases under the Act after taking into account past experience of such officer as also the sense of ability and justice to perceive the implications of the cases and investigate the cases along-with right lines within the shortest possible time. This authorization / appointment not having been done with respect to Sri Anuranjan Kispota, who had investigated and submitted the charge-sheet in the present case, the investigation made by him is clearly vitiated in absence of any such appointment under the Act and the Rules, even though Sri Anuranjan Kispota was an Officer of the rank of Deputy Superintendent of Police. The case of the petitioner is fully covered by the decision of the Supreme Court of India in Chunnilal’s Case (supra) wherein, it has been laid down by as follows : “By virtue of its enabling power it is the duty and responsibility of the State Government to issue a 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. 8. 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 I.P.C 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 an appropriate court for the offences punishable under 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.” (Emphasis supplied). 9. The Supreme Court of India has laid down in unequivocal terms that Section 9 of the Act and Rule 7 of the Rules as also Section 4 of the Code 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. 10. 10. The case of the petitioner is fully covered by the law laid down of the Apex Court in the case of Chuni Lal’s case (supra) and accordingly, the charge-sheet submitted in the present case for the offences under Sections 3 (I) (ii) (iii) (v) (x) of the Act, having been submitted by an Officer, even though of the rank of Deputy Superintendent of Police, but not notified in terms of Rule 7 of the Rules, cannot be sustained in the eyes of law. Accordingly, even the impugned order dated 31.5.2010 passed by the learned Sessions Judge cum Special Judge, S.C / S.T (Prevention of Atrocities) Act in S.T. No. 470 of 2008 cannot be sustained for the same reasons. 11. Accordingly, the proceeding against the petitioners in the Court below in S.T No.470 of 2008 arising out of Dumri P.S Case No. 36 of 2007, so far as it relates to the offences under the S.C / S.T (Prevention of Atrocities) Act, is hereby, quashed. In view of the fact that the charge-sheet for the offences under the Indian Penal Code has been submitted against the petitioners by the competent police officer in accordance with the provisions of the Code, the trial for the same shall continue against the petitioners in the competent Court of Law. 12. The office is directed to send a copy of this order to the Director General of Police, State of Jharkhand, for the needful, if any, in view of the law laid down as above. 13. This application accordingly, stands allowed, with the directions / observations, as above.