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2015 DIGILAW 693 (JHR)

Atam Thakur v. State of Jharkhand

2015-06-16

RAVI NATH VERMA

body2015
ORDER 1. The petitioners call in question the legality of the order dated 03.03.2014 passed by learned Additional Sessions Judge-cum-Special Judge (S.C. & S.T. Act) Palamau in Hariharganj P.S. Case No.35 of 2009 corresponding to G.R. No.790 of 2009 whereby and whereunder the petition filed by the petitioners for their discharge under Section 227 of the Code of Criminal Procedure (in short the code), has been rejected. 2.The petitioners have been made accused in Hariharganj P.S. Case No.35 of 2009 for the offence under Sections 147, 323 and 504 of the Indian Penal Code and also under Section 3/4 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act on the basis of the fardbeyan of the informant- Indrajeet Ram that on 01.05.2009 at about 8.15 a.m. the petitioners armed with Lathi and Danda came at the settled land of the informant, which was given to him by Bhudan Yagya Committee and ransacked the hut situated on the said land and with the help of Poklan machine started digging the land but when the informant tried to obstruct them, they abused the informant in filthy languages by naming his caste and also uttered “Chamra Khane Wala” and assaulted the informant and his family members. It appears from the record that after investigation the police submitted charge sheet in the above Sections in which the case was lodged and thereafter the court took cognizance of the offence and committed the case to the court of learned Additional Sessions Judge-I cum Special Judge under the Act. Whereafter a petition was filed under Section 227 of the Code for discharge of the petitioners but the court below rejected the prayer by the order impugned holding that the witnesses examined during investigation have all stated that accused persons abused the informant by calling “Harijan Chamar” and uttered filthy languages and the words “Harijan, flesh eater, Sala”. Hence, there is sufficient material on record for framing charge against the petitioners. 3. Learned counsel for the petitioner, Mr. Hence, there is sufficient material on record for framing charge against the petitioners. 3. Learned counsel for the petitioner, Mr. Pandey Neeraj Rai by raising a solitary question as to whether non-compliance of the mandates given in Section 9 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (in short ‘the Act’) and Rule 7 of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as ‘the Rules’) whereby the investigation has to be carried out by an officer of the rank of Deputy Superintendent of Police appointed in terms of Rule 7, the investigation done in the case is sustainable in the eye of law and consequently the order refusing to discharge the petitioners can sustain in the eye of law and in support of his contention, the learned counsel relied on a case State of Madhya Pradesh V. Chunnilal @ Chunni Singh; (2009) 12 SCC 649 where the Hon’ble Supreme Court has clearly directed that the Investigating Officer must not be below the rank of Deputy Superintendent of Police. 4. Contrary to the aforesaid submissions, the learned counsel representing the State submitted that the offences in the instant case related to both under Indian Penal Code and Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and that the court below finding sufficient material on record rejected the prayer. Hence, no interference is required in the order impugned. During argument of this case, learned Additional Advocate General was called to enlighten the court in the light of Rule 7 of Rules 1995 and the State counsel submitted that while appointing the Investigating Officer of the rank of Superintendent of Police, the State Government took every precaution taking into account the three ingredients incorporated in the said Rules to perceive the implications of the case but it was also submitted that the State Government in terms of the power incorporated under Section 9 of the Act, has issued a notification empowering an Police Officer of the rank of Inspector and Sub Inspector to investigate the cases under the Act. 5. 5. The learned counsel for the petitioners has raised a moot question relating to the competency of the Investigating Officer in the instant case, but as the order passed on the petition for discharge of the petitioner filed under Section 227 of the Code is under challenge, the prima-facie case and sufficiency of materials have also to be examined. For better appreciation, the two issues (i) non-competency of the Investigating Officer in terms of Section 9 of the Act and Rule 7 of the Rules and (ii) the prima facie case and sufficiency of materials to frame charge are taken up separately. 6. In the case of State of Madhya Pradesh V. Chunnilal @ Chunni Singh (supra) the Hon’ble Supreme Court clearly depicted that in terms of Rule 7 of the Rules an officer below the rank of Deputy Superintendent of Police, cannot act as an Investigating Officer and an officer not appointed in terms of Rule 7 is illegal and invalid. In Paragraph 8 of the judgment the Hon’ble Supreme Court held as follows: 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 of 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 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 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. 7. In the instant case, the offences complained are under Indian Penal Code and also the offences enumerated in Section 3/4 of the Act. 7. In the instant case, the offences complained are under Indian Penal Code and also the offences enumerated in Section 3/4 of the Act. It appears from the case diary which was called for by this Court from the court concerned that after institution of the case, the charge of investigation was given to an officer of the rank of A.S.P. which is equivalent to Deputy Superintendent of Police and the entire investigation was conducted by the officer of the same rank and the charge-sheet was also submitted by Sub Divisional Police Officer (S.D.P.O.) equivalent to D.S.P., Chhatarpur. It further appears that the Additional Advocate General has submitted that the State Government took every precaution taking into account the three ingredients incorporated in Rule 7 of Rule 1995 to perceive the implications of the case. Hence, I find that there is no force in the submission of the learned counsel for the petitioners that the mandate given in Section 9 of the Act and Rule 7 of Rule 1995 have not been followed. 8. So far as the consideration of the prima facie case or sufficiency of materials on record is concerned, it appears from the impugned order that the court below has considered several Paragraphs of the case diary and found that the witnesses have supported the allegation and finding sufficiency of materials on record, the court below rejected the prayer for discharge of the petitioners. 9. The scope of Section 227 of the Code which deals with the discharge or framing of charge against the accused has been analysed by the Hon’ble Supreme Court in a case Sajjan Kumar Vs. CBI; (2010) 9 SCC 368 wherein the Hon’ble Supreme Court has observed in Paragraph 19 as under:- 19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” 10.From the above ratio, decided by the Hon’ble Supreme Court, it is clear that at the initial stage, if there is strong and grave suspicion for presuming that the accused has committed an offence, in that event it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The evidences are not to be weighed and appreciated in the same as is done by the trial court. Apparently, the charge-sheet, in the case at hand, was submitted against the petitioners finding sufficiency of materials available on record, whereafter the court took cognizance of the offence. I have gone through different Paragraphs of the case diary and find that the witnesses examined during investigation have all supported the prosecution version. Hence, a strong and grave suspicion is there for presuming that the petitioners have committed the offence. 11. In view of the authoritative pronouncement and principles laid down in the above case, this court which is sitting under revisional jurisdiction has a very limited jurisdiction and in my view the court below has rightly refused to discharge the petitioners. 12. Hence, in the light of the observations made above, I see no reason to interfere in the order impugned. Thus, the revision application is, hereby, dismissed.