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2013 DIGILAW 449 (JHR)

Chandu Ram v. State of Jharkhand

2013-04-04

H.C.MISHRA

body2013
JUDGMENT By Court.- Heard learned counsel for the petitioner and learned counsel for State as also learned counsel for the accused opposite parties. 2. The petitioner is aggrieved by order dated 1.9.2009 by the learned 1st Additional Sessions Judge-cum-special Judge. S.C. & S.T. (Prevention of Atrocities) Act, Garhwa, in S.C. & S.T. Case No.2 of 2009, arising out of Complaint case No. 742 of 2006. whereby the application filed by the accused opposite parties under Section 227 of the Cr PC. was allowed by the Court below holding that the procedure prescribed under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules (herein after referred to as the said Rules) was not followed in the case and other offences being triable by a Magistrate the learned special Judge accordingly, remitted the case back to the court of sub-divisional, Judicial Magistrate Gahrwa, for trial in accordance with law. 3. The petitioner had filed the Complaint Case No. 742 of 2006 in the Court of Chief Judicial Magistrate, Garhwa, alleging the commission of the offences under Section 452, 323, 385, 420, 387, 384 and 406 of the Indian Penal Code and Sections 3, 4, 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (hereinafter referred to as the said Act). It appears that case was transferred to the Court of sub-divisional Magistrate. Garhwa, who entered into an enquiry under Section 202 of the Cr P.C. found the prima facie offence under the said Act, and committed the case to the Court of Special, Judge for trial in accordance with law. The special, Judge found that the previsions of Rule 7 of the said Rules were not followed as the matter was not investigated by any police officer not below the rank of Deputy Superintendent of Police and accordingly, the matter was returned back to the Court below by the Special Judge. It further appears that thereafter the learned Sub-divisional, Judicial Magistrate called for an enquiry report from the Deputy Superintendent of Police, Garhwa, who in turn submitted a report finding the case to be true and thereafter, the matter was again committed to the Court of Special Judge by the Sub-Divisional, Judicial Magistrate. It further appears that thereafter the learned Sub-divisional, Judicial Magistrate called for an enquiry report from the Deputy Superintendent of Police, Garhwa, who in turn submitted a report finding the case to be true and thereafter, the matter was again committed to the Court of Special Judge by the Sub-Divisional, Judicial Magistrate. The learned Special Judge again found that the case was instituted on the basis of the complaint and the procedure prescribed under Rule 7 of the said Rules were not followed, as the case was not investigated in accordance with the said Rules and accordingly, found that the trial for the offences under the said Act could not be continued against the accused persons. Other offences being triable by the Magistrate, the learned Addl. Sessions Judge-cum-Special Judge, Garhwa, remanded the matter back to the Court of Sub-Divisional, Judicial Magistrate, Garhwa, for trial in accordance with law. 4. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch as the procedure prescribed under Rule 7 of the said Rules had been complied with, as upon remand of the case to the Court of SDJM, the Court called for an enquiry report from the Deputy Superintendent of Police, Garhwa, who visited the spot and record the statements of the witnesses and submitted his enquiry report finding the case to be true. Learned counsel for the complainant-petitioner accordingly, submitted that the provisions of Rule 7 of the said Rules were complied with and accordingly, the impugned order is absolutely illegal and the same cannot be sustained in the eyes of law. 5. Learned counsel for the State, as also learned counsel for the accused-opposite parties, opposed the prayer submitting that the provisions of Rule 7 had not been complied with and the case was instituted on the basis of the complaint filed in the Court of Chief judicial Magistrate, which is not permissible under the said Rules. 5. Learned counsel for the State, as also learned counsel for the accused-opposite parties, opposed the prayer submitting that the provisions of Rule 7 had not been complied with and the case was instituted on the basis of the complaint filed in the Court of Chief judicial Magistrate, which is not permissible under the said Rules. Learned counsel has drawn the attention of the Court towards Rule 5 of the said Rules, which prescribes that the information relating to the commission of knee under the said Act has to be given to the police officer in-charge of the police station and if the officer-in-charge of the police station refuses to enter the substance thereof in a book to be maintained by the police station the aggrieved person has to send the substance of such information, in writing and by post, to the Superintendent of Police concerned, who after investigation either by himself or by a police officer not below the rank of Deputy Superintendent of Police, shall make an order in writing to the officer in-charge of the concerned police station to enter the substance of that information in the book to be maintained at the police station. Thereafter, the investigation of the case is to be made by a police officer not below the rank of a Deputy Superintendent of Police, in accordance with Rule 7 of the said Rules. It has also been submitted that as the complaint petition was filed in the Court of Chief Judicial Magistrate, the provision of Rule 5 were not at all followed in this case and accordingly, then is no illegality in the impugned order holding that the trial could not be proceeded in the Special Court, and the other offences being trial by a Magistrate, the matter was remanded to the Court below. 6. Rule 5 of the said Rules reads as follows:- "5. Information to Police Officer in-charge of a Police Station.- (1) Every information relating to the commission of an offence under the Act. 6. Rule 5 of the said Rules reads as follows:- "5. Information to Police Officer in-charge of a Police Station.- (1) Every information relating to the commission of an offence under the Act. if given orally to an officer in- charge of a police station shall be reduced to writing by him or under his direction and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the persons giving it, and the substance thereof shall be entered in a book to be maintained by that police station. (2) A copy of the information as so recorded under sub-rule (1) above shall be given forthwith fee of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an Officer-in-Charge of a police station to record the information referred to in sub-rule (1) may send the substance of such information, in writing and by post to the Superintendent of Police concerned who alter investigation either by himself or by a police officer not below the rank of Deputy Superintendent of Police, shall make an order in writing to the Officer-in-Charge of the concerned police station to enter the substance of that information to be entered in the book to be maintained by that police station." 7. In the compliant petition, it finds mentioned that the complaint was filed in the Court of Chief Judicial Magistrate, as the police had refused to entertain the case when the information was given at the police station. It is apparent from Rule 5 of the said Rules. as quoted above, that a person aggrieved by refusal on the part of the officer-in-charge of the police station to record the information may send the substance of such information in writing and by post to the Superintendent of Police, who after investigation either by himself, or by a police officer not below the rank of Deputy Superintendent of Police. shall make an order in writing to the officer incharge of the concerned police station to enter the substance of that information in the book to be maintained by that police station. It is apparent that the provisions of Rule 5 of the said Rules have not been followed in the present case. 8. Similarly, Rule 7 of the said rules reads as follows:- 7. It is apparent that the provisions of Rule 5 of the said Rules have not been followed in the present case. 8. Similarly, Rule 7 of the said rules reads 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/Direction General or 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 to 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." 9. A plain reading of this Rule clearly envisages that the offence committed under the Act shall be investigated by a police officer not below the rank of Deputy Superintendent of Police and the investigating officer has to be appointed by the State Govt./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. It may be pointed out that inspite of several opportunities given by the Court no notification/order issued by the State Government, or the Direction General of Police, or the Superintendent of Police pursuant to Rule 7 of the said Rules could be produced by the learned State Counsel. 10. It is apparent from the plain reading of the Rules quoted above that special provisions have been prescribed by the Legislature for institution and investigation of the case for the offences under the said Act. In that view of the matter even if the complaint was filed by the complainant before the Chief Judicial Magistrate, the Court not have entered into an enquiry under Section 202 of the Cr PC. In that view of the matter even if the complaint was filed by the complainant before the Chief Judicial Magistrate, the Court not have entered into an enquiry under Section 202 of the Cr PC. rather the Court aught to have sent the complaint for institution of the police case and investigation in accordance with the law. In that view of the matter. I find that there is gross violation of Rule 5 of the said Rules in the present case. This apart, no notification/order issued by the State Government, or the Direction General of Police or the Superintendent of Police pursuant to Rule 7 of the said Rules could be produced by the learned State Counsel. appointing a police officer not below the rank of Deputy Superintendent of Police for investigating the cases under the said Act. As such, even if there is an enquiry report of the Deputy Superintendent of Police, Garhwa in the present case, but there is nothing to show that he was appointed by the State Govt. or the Direction General of Police, or the Superintendent of Police to make investigations in the case under the said Act, 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. In that view of the matter, I am of the considered view that there is gross violation of even Rule 7 of the said Rules in the present case. 11. In view of the aforementioned discussions. I am of the considered opinion that Court below has come to the correct finding that the provisions of Rule 7 of the said Rules have not been followed in this case and the trial for the offence under the said Act could not be continued against the accused opposite parties. The learned 1st Addl. Sessions Judge-cum-Special Judge, Garhwa has rightly remanded the case back to the Court below, as the other offences against the accused were triable by a Magistrate. 12. In view of the aforementioned discussions. I do not find any illegality and/or irregularity in the impugned order passed by the Court below worth interference in the revisional jurisdiction. There is no merit in this revision application and the same is, accordingly dismissed. Application dismissed.