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2012 DIGILAW 849 (RAJ)

Chhote Lal v. State of Rajasthan

2012-04-09

NISHA GUPTA

body2012
JUDGMENT 1. - These criminal misc. petitions under Section 482 Criminal Procedure Code have been filed against the orders passed by the trial Court whereby the cognizance has been taken against the present petitioners under Section 4 of the Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Since the controversy involved in both these petitions are common and, therefore, both these petitions have been decided by this common order. 3. The short facts of the case are that the complainants had filed a complaint in concerned Court for the offences tinder the Indian .Penal Code as well as under Section 3 of the F.I.R. was registered in the concerned Police Stations. The present petitioners were the Investigating Officers. After investigation, after approval of the Superintendent of Police, a negative report was filed and the complainants agisted that the Investigating Officers-petitioners had not investigated the matter properly and after recording the statements of complainants and their witnesses, the trial Court had taken cognizance of the offence under Section 4 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the present petitioners. The revision petitions have also been dismissed. Hence these petitions. 4. The contention of the present petitioners are that the impugned orders are illegal. The petitioners have discharged the duties of the Investigating Officers fairly and had committed no negligence. It was also submitted that the provisions of Section 4 can be attracted only when the persons are negligent in their duties and it can be ascertained only at the time of passing of final judgment, not at the time of considering the final report. The allegation of the complainant is that his statement has not been recorded properly. The conclusion regarding reliability of the statement can be judged only at the time of final out come of the trial Court and the cognizance is premature. It is further submitted by the petitioners that the investigation has been done under the provisions of the Code of Criminal Procedure and nothing has been done under the Scheduled Castes/ Scheduled Tribes (Prevention of atrocities) Act, 1989 and when no duty is prescribed under the Act, no offence could be said to be committed for the offence under Section 4 of the Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the cognizance order is per se illegal. 5. 5. To resolve this controversy, a reading of Section 4 of the Scheduled Castes /Scheduled Tribes (Prevention of Atrocities) Act, 1989 would be relevant which reads as under: "4. Punishment for neglect of duties. - Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, willfully neglects his duties required to be performed by him under this Act, shall be punishable with imprisonment for a term shall not be than six months but which may extend to one year. " 6. A bare perusal of the provisions of Section 4 of the Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, 1989 goes to show that duty is cast upon a public servant not to willfully neglect, his duty which is required to be performed under the said Act. The learned counsel for the petitioner has relied upon the judgment delivered in the case of Ram Pal v. State of Rajasthan, 1998 Cri.L.J. 3261 , wherein it has been held that submission of final report by the Investigating Officer under Section 173 of the Criminal Procedure Code cannot be said to be in exercise of duty performed under the said Act and no offence is said to be committed tinder Section 4 of the Act. A bare reading of Section 4 of the Scheduled Castes/Scheduled. Tribes (Prevention of Atrocities) Act, 1989 goes to show that the offences which are punishable under this Act must have been committed in respect of some duty to be performed tinder the Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, 1989. If any duty is to be performed under any other Act, then the provisions of Section 4 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 could not apply. It was held by the co-ordinate Bench of this Court as under. "A bare reading of Section 4 shows that the offences, which are punishable under this section, must have been committed in respect of some duty to be performed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. If any duty is to be performed under any other Act (including the Code of Criminal Procedure), then the provisions of Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 do not apply. If any duty is to be performed under any other Act (including the Code of Criminal Procedure), then the provisions of Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 do not apply. The crucial question is whether the investigation was conducted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and whether the submission of final report was in respect of any duty prescribed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. If answer be in the affirmative, it will be said that the offence under Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 may be committed. But, if the answer be in the negative, then it will have to be said that no offence under Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 can be said to have been committed, if any public servant willfully neglects his duties prescribed by any other law. In the instant case, the complaint was sent to the police for investigation under sub-section (3) of Section 156, Criminal Procedure Code The case was registered by the police in exercise of the powers given by the Code of Criminal Procedure. The investigation was conducted by the petitioner tinder Section 157 and other provisions of the Code of Criminal Procedure, 1973 and the final report, which the petitioner has submitted was in discharge of the duty prescribed by Section 173 Code of Criminal Procedure, 1973. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 does not provide any particular procedure for the investigation of the cases and therefore, in view of Section 4(2) the offence are required to be investigated, enquired into, tried or otherwise dealt with according to the provisions of Code of Criminal Procedure except to the extent the general provisions contained in the Code of Criminal Procedure are superseded by any special provision contained in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In view of this position of law, the submission of final report under Section 173 Code of Criminal Procedure, 1973 cannot be said to be an act done in exercise of the duty prescribed by or tinder the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In view of this position of law, the submission of final report under Section 173 Code of Criminal Procedure, 1973 cannot be said to be an act done in exercise of the duty prescribed by or tinder the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Consequently, I have no hesitation in coming to the conclusion that even if any neglect of duty in the conduct of investigation is committed by the Investigating Officer while purporting to act in exercise of the powers conferred by the Code of Criminal Procedure, 1973, the provisions of Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 would not be attracted unless it can be established that the willful neglect of duty was committed by the Investigating Officer in relation to a duty prescribed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 7. It was further submitted by the learned counsel for the petitioner that looking to the provisions of Section 190 Criminal Procedure Code, the cognizance is bad is law and he has further relied on the judgment of Rain Pal (supra) wherein it has been held as under: "There is another reason for quashing and setting aside the impugned orders passed by the learned Judicial Magistrate. It is this Section 190, Criminal Procedure Code provides only three modes in which cognizance of the offence can be taken by the Court. The first is on the submission of the complaint. oral or in writing before the Magistrate that a person known or unknown has committed an offence and that action should be taken against him. The second is on a police report submitted by the police tinder Section 173, Criminal Procedure Code and the third is on the basis of the personal knowledge; of the Magistrate or on the basis of an information received from any person other than police officer. In the instant case, there was no complaint under Clause (a) of sub-section (1) of Section 190, Criminal Procedure Code alleging the commission of offence under Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the Superintendent of Police, Churu and the Officer In-charge, who conducted the investigation and in the absence of a complaint, the power to take cognizance under Clause (a) of sub-section (1) of Section 190 could not be exercised. The final report, which was submitted by the petitioner, did not contain any facts which can constitute an offence under Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities). Act, 1989. Therefore, the learned Judicial Magistrate could not legally take cognizance of the offence under Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Clause (b) of sub-section (1) of Section 190, Criminal Procedure Code So far as Clause (c) of sub-section (1) of Section 190,. Criminal Procedure Code is .concerned, it is important to note that under the Code of Criminal Procedure 1898, a Magistrate could take (cognizance) offence even if there was ground for suspicion that an offence had been committed. But, when the Code of Criminal Procedure, 1973 was enacted, Clause (c) of sub-section (1) of Section 190, Criminal Procedure Code was partly modified by deletion of the word "suspicion" In other words, the necessary effect of change brought about by the Code of Criminal Procedure, 1898 is that no Court (can) take cognizance under Clause (c) of sub-section (1) of Section 190, Criminal Procedure Code merely on the basis of the suspicion that an offence has been committed. There must be either personal knowledge on the part of the Magistrate taking cognizance or there must be information from any person other than a police officer that an offence has been committed. Final report was submitted by the police officer, and therefore, nothing contained in the final report could attract the provisions of Clause (c) of sub-section (1) of Section 190, Criminal Procedure Code There is nothing to indicate that any person other than a police officer gave information to the learned Judicial Magistrate that an offence under Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 had been committed by the Superintendent of Police, Churu and Circle Officer, who conducted the investigation. In these circumstances, the learned Judicial Magistrate could not invoke Clause (c) of sub-section (1) of Section 190, Criminal Procedure Code for taking cognizance. He appears to have acted on the basis of a suspicion that the Investigating Officer neglected to perform his duty when he submitted F.R. in place of a charge-sheet and that the Superintendent of Police, Chuni neglected his duty when he approved the final report pre-pared by the Investigating Officer. He appears to have acted on the basis of a suspicion that the Investigating Officer neglected to perform his duty when he submitted F.R. in place of a charge-sheet and that the Superintendent of Police, Chuni neglected his duty when he approved the final report pre-pared by the Investigating Officer. Since, suspicion cannot be the basis of cognizance under Clause (c) of sub- section (1) of Section 190, Cr.P.C, the learned Judicial Magistrate was not justified in taking cognizance of the offence." 18. The learned counsel for the petitioner has further placed reliance upon the judgment reported in the case of Ananda Pungala v. T.R. Jagannath, 2003 Cri.L.J. 3215 , where similar view has been taken.9. Looking at the above, it can safely be concluded that no duty has been cast upon the petitioners to perform any duty under the Act and, admittedly, the investigation has been conducted under the Code of Criminal Procedure and when no duty has been cast under the Act, Section 4 will not operate and at the same time, it has not been established that the Investigating Officer has willfully neglected any duty. The only contention' of the respondent that the present petitioners have not taken the statements rightly, but this contention has not been fortified by the conclusion of the competent Court and the contention of the petitioner that the cognizance is premature seems to be well founded. Whether the petitioners have neglected in their duties or not, is a fact which can be ascertained only at the time of final judgment in the concerned criminal case.10. Accordingly both these petitions are allowed and the impugned orders are hereby quashed.Petition allowed. *******