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Jharkhand High Court · body

2015 DIGILAW 1134 (JHR)

Mahesh Soni v. State of Jharkhand

2015-09-17

H.C.MISHRA

body2015
JUDGMENT : Heard learned counsel for the petitioner, learned counsel for the State as also learned counsel for the informant. 2. The petitioner is aggrieved by the order dated 9.2.2007 passed by learned 1st Additional Sessions Judge-cum-Special Judge, Gumla, in Gumla P.S. Case No. 79 of 2005 corresponding to G.R. No. 219 of 2005, whereby charge was framed against the petitioner for the offence under Sections 406, 420, 467 and 120-B of the Indian Penal code and Section 3(ii)(vi) of the SC/ST (Prevention of Atrocities) Act (hereinafter referred to as the ‘ SC/ST (POA) Act’). 3. The facts of the case lie in a short compass. The informant had lodged the FIR against the accused persons, on the basis of which, Gumla P.S. Case No. 79 of 2005 corresponding to G.R. No. 219 of 2005 was instituted for the offence under Sections 406, 420, 467 and 120-B of the Indian Penal Code. The police case was not instituted under the SC/ST (POA) Act, even though it was stated in the FIR that the informant belonged to ST Category. The investigation in this case was made by the A.S.I. of police, who also submitted the charge sheet against the petitioner and the other accused only for the offence under Sections 406, 420, 467 and 120-B of the Indian Penal code. Accordingly, cognizance was taken by the Court below and the petitioner was ultimately put to Trial in the Court of the Judicial Magistrate. In Magistrate’s Court, a petition was filed on behalf of the prosecution on 24.11.2006, stating that the offence was also made out under the provisions of SC/ST (POA) Act, and accordingly, the learned Judicial Magistrate, who was conducting the trial, committed the case to the Special Court, by order dated 5.12.2006, finding that there were ingredients for the offence under Section 3(1)(ix) of the SC/ST (POA) Act against the accused persons. Ultimately, the learned 1st Additional Sessions Judge-cum-Special Judge, Gumla, by order dated 9.2.2007 passed in the said G.R. No. 219 of 2005, framed the charge, also for the offences under Sections 3(1)(ii)(vi) of the SC/ST (POA) Act, against the accused persons. 4. Ultimately, the learned 1st Additional Sessions Judge-cum-Special Judge, Gumla, by order dated 9.2.2007 passed in the said G.R. No. 219 of 2005, framed the charge, also for the offences under Sections 3(1)(ii)(vi) of the SC/ST (POA) Act, against the accused persons. 4. It is submitted by learned counsel for the petitioner that the impugned order framing the charge under the SC/ST (POA) Act is absolutely illegal, in view of the fact that the investigation of the case was made by the A.S.I. of police, whereas the law requires that it should be made by the Police Officer not below the rank of Deputy Superintendent of Police, who shall be appointed by the state Government / Director General of Police / Superintendent of Police in accordance with Rule 7 of the SC/ST (Prevention of Atrocities) Rules (herein after referred to as 'SC/ST (POA) Rules'). It is also submitted that the Superintendent of Police, Gumla, had entrusted the investigation of the case to the S.D.P.O., Gumla, who received the charge of investigation on 30.5.2006 and he submitted charge sheet by only after recording the statement of the informant, on the basis of which, the charge has been framed against the accused persons. Learned counsel has further submitted that the S.D.P.O., Gumla, was never appointed for investigation of this case under the provisions of Rule 7 of the SC/ST (POA) Rules and the investigation was entrusted to the said police officer only to complete the formalities. Learned counsel has accordingly, submitted that firstly, the S.D.P.O., Gumla was not appointed in accordance with law for investigation of the case and secondly, no investigation worth mentioning was done by the S.D.P.O., Gumla, and only recording the statement of the informant, fresh charge sheet had been submitted. Learned counsel has accordingly, submitted that the impugned order passed by the court below, framing the charge against the petitioner, also for the offences under Sections 3(1)(ii)(vi) of the SC/ST (POA) Act, cannot be sustained in the eyes of law. 5. Learned counsel for the State as also learned counsel for the informant have opposed the prayer. Learned counsel has accordingly, submitted that the impugned order passed by the court below, framing the charge against the petitioner, also for the offences under Sections 3(1)(ii)(vi) of the SC/ST (POA) Act, cannot be sustained in the eyes of law. 5. Learned counsel for the State as also learned counsel for the informant have opposed the prayer. Learned counsel for the state has pointed out from paragraph-5 of the counter affidavit filed on behalf of the State, wherein it is stated that the Superintendent of Police, Gumla, appointed the S.D.P.O., Gumla, to investigate the case and in support of this statement, Annexure-A has been brought on record, which is the supervision note of the Superintendent of Police, Gumla, in the said Gumla P.S. Case No. 79 of 2005, who, on 19.5.2006, had found that the offence was made out under the SC/ST (POA) Act as well, and entrusted the further investigation of the case to S.D.P.O., Gumla, directing him to complete the investigation within fifteen days. Annexure-A/1 has also been brought on record by the State, which is also the part of the case diary, which shows that pursuant thereto, the S.D.P.O., Gumla, took the charge of investigation on 30.5.2006 and thereafter he recorded the statement of the informant on 11.9.2006. Except recording the statement of the informant, no investigation whatsoever was done and the further investigation in this case was closed and the enquiry report was submitted in the Court below. Based on these facts, the stand of the learned counsels for the State, as also for the informant, is that there is no illegality in the investigation of the case, and in view of the fact that the offence is made out against the accused persons, also for the offences under the SC/ST (POA) Act, the charge has been rightly framed by the Court below. 6. It is apparent from the counter affidavit filed on behalf of the State that there was no appointment of the Investigating Officer in terms of Rule 7(1) of the SC/ST (POA) Rules, which reads as follows:- 7. Investigating Officer.—(1) An offence committed under the Act shall be investigated by the police officer not below the rank of Deputy Superintendent of Police. Investigating Officer.—(1) An offence committed under the Act shall be investigated by the 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 his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within a shortest possible time. **** **** **** ” 7. From the plain reading of Rule 7(1) of the SC/ST (POA) Rules, it is apparent that this rule is mandatory in nature and needs to be strictly followed. Even though, it is stated in the counter affidavit that the Superintendent of Police, Gumla, appointed the S.D.P.O., Gumla, for investigating the case, but the document brought on record in support of the statement does not show any appointment of the S.D.P.O., Gumla, in terms of Rule7(1) aforesaid, and this only shows that simply the entrustment of the investigation of the case was made to the S.D.P.O., Gumla, without making his appointment in terms of the mandatory requirements as prescribed in Rule 7(1) of the SC/ST (POA) Rules, 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 a shortest possible time. It is also apparent that the S.D.P.O., Gumla, though had taken over the charge of the investigation, but except recording the statement of the informant again, he had not done any investigation in the case and closed the investigation. In that view of the matter, I am of the considered view that there was no investigation of the case by the police officer of the rank of Deputy Superintendent of Police, duly appointed in accordance with law. 8. In view of the aforesaid discussions, I find that there was no occasion for the learned Judicial Magistrate conducting the trial, to commit the same to the Special Court, and no charge could be framed against the accused persons for the offences under the SC/ST (POA) Act. 9. 8. In view of the aforesaid discussions, I find that there was no occasion for the learned Judicial Magistrate conducting the trial, to commit the same to the Special Court, and no charge could be framed against the accused persons for the offences under the SC/ST (POA) Act. 9. Accordingly, the order dated 5.12.2006, passed by the learned Judicial Magistrate, committing the case to the Court of Special Judge, as also the impugned order dated 9.2.2007 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Gumla, in Gumla P.S. Case No. 79 of 2005 corresponding to G.R. No. 219 of 2005, framing the charge against the accused persons, are hereby, set aside. Consequently, the trial of the case shall be reverted back to the original Trial Court, which shall resume the Trial, for the offences under the Indian Penal Code, from the stage it was left by it. This application is accordingly, allowed, with directions as above.