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2016 DIGILAW 534 (JHR)

Anil Keshri v. State of Jharkhand

2016-03-30

RONGON MUKHOPADHYAY

body2016
ORDER : 1. Heard Mr. Mohit Prakash, learned counsel for the petitioner and Mr. Moti Gope, learned A.P.P. for the State. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Chainpur P.S. Case No. 27 of 2014 including the order dated 16.2.2015 passed by the learned Additional Chief Judicial Magistrate, Gumla whereby and where under cognizance has been taken for the offence punishable under Sections 3(I), (II), (V), (VII), (X), (XI) of the Schedules Castes & Scheduled Tribes (Prevention of Atrocities) Act. 3. A complaint case was initially instituted being Complaint Case No. 70 of 2014 in which it was alleged that the informant on 7.2.2003 by virtue of a registered deed of sale purchased 0.10 acres of land and Pushpa Beck also purchased 0.6 acres of land. It has been stated that one Savitri Devi had filed a Pre-emption Case No. 3 of 2002-03 before the L.R.D.C., Gumla at the instigation of the petitioner whereas, the said case was dismissed on 12.2.2014 against which an appeal was preferred before the Deputy Commissioner, Gumla which was also dismissed. Allegations have been made that the accused persons always tried to make hindrance in construction of boundary wall and used to abuse the complainant in the name of her caste. In spite of the decision of the Panchayat on 25.2.2014, the petitioner neither appeared nor did he obeyed the decision of the Panchayat. It has further been alleged on 11.3.2014, the informant and other purchaser had come with the labourers for construction of boundary wall, the accused persons fully armed have started abusing the informant and others by calling them in the name of their caste. After the complaint case was instituted, the same was sent to the Police under Section 156(3) of the Cr.P.C. pursuant to which Chainpur P.S. Case No. 27 of 2014 was instituted for the offence punishable under Sections 341/323/34 of the I.P.C. and under Sections 3(I), (II), (V), (VII), (X), (XI) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. After the conclusion of investigation, charge-sheet was submitted only under Sections 3(I), (II), (V), (VII), (X), (XI) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. 4. Mr. After the conclusion of investigation, charge-sheet was submitted only under Sections 3(I), (II), (V), (VII), (X), (XI) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. 4. Mr. Mohit Prakash, learned counsel for the petitioner has submitted that the entire criminal proceeding deserves to be quashed solely on the ground that Sub-Inspector of the Police who investigated the case was not authorised in terms of Rule 7 of the S.C. & S.T. (Prevention of Atrocities) Act. It has been submitted that in terms of Rule 7, the investigation is to be carried out by a Police Officer not below the rank of Dy. S.P. and that too authorised by the Government. In absence of complying with the mandatory provisions of Section 7 of the S.C. & S.T. (Prevention of Atrocities) Act, the entire criminal proceedings against the petitioner deserves to be quashed and set aside. 5. Mr. Moti Gope, learned A.P.P. on the other hand, has submitted that the allegations have been found to be proved charge-sheet was submitted and pursuant to which cognizance was taken by the learned Magistrate. 6. Since the argument of the learned counsel for the petitioner is confined only in respect to the jurisdiction of the Sub-Inspector of Police to investigate a case under the S.C. & S.T. (Prevention of Atrocities) Act, 1989, it would be necessary to refer at the first instance to Section 9 of the Act which reads as follows:- "9. Conferment of powers - (1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do:- (a) for the prevention of and for coping with any offence under this Act; (b) for any case or class or group of cases under this Act, in any district or part thereof, confer, by notification in the official Gazette, on any officer of the State Government, the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court. (2) All officers of police and all other officers of Government shall assist the officer referred to in sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder. (3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under sub-section (1)." 7. In terms of Section 23 of the Act rules have been framed being the S.C. & S.T. (Prevention of Atrocities) Rules 1995 and Rule 7 deals with the power to investigate an offence under the provisions of the Act and which 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, 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." 8. From a perusal of the Rule 7 of the Rules, it thus appears that an offence committed under the S.C. & S.T. (Prevention of Atrocities) Act has to be investigated by a police officer not below the rank of Deputy Superintendent of Police and the Investigating Officer shall be appointed by the State Government, after taking into consideration his past experience, sense of ability and other factors. Rule 7 therefore being a mandatory provision has to be followed in cases of investigation by the police for the offence committed under the S.C. & S.T. (Prevention of Atrocities) Act. Admittedly, the investigation was carried out by one Shyam Chandra Singh, who is the Sub-Inspector of Police and who has submitted charge-sheet against the petitioner. It further appears that in course of investigation, 3 Investigating Officers were changed and all the Investigating Officers who had investigated into the matter were Sub-Inspectors of Police. In the case of State of Punjab v. Hardial Singh & Others reported in (2009) 15 SCC 106 , it was held that Rule 7 of the Rules being a mandatory provision has to be followed and no police officer below the rank of Dy. S.P. can investigate the case under S.C. & S.T. (Prevention of Atrocities) Act. 9. In the case of State of Punjab v. Hardial Singh & Others reported in (2009) 15 SCC 106 , it was held that Rule 7 of the Rules being a mandatory provision has to be followed and no police officer below the rank of Dy. S.P. can investigate the case under S.C. & S.T. (Prevention of Atrocities) Act. 9. Since the mandatory provisions which has been ingrained in the Act as well as the Rules have neither been taken note of nor have they been followed, criminal prosecution against the petitioners, if allowed to be continued would be an abuse of the process of law. 10. In such circumstances therefore having found merit in this application, the same is allowed and the entire criminal proceeding in connection with Chainpur P.S. Case No. 27 of 2014 including the order dated 16.2.20 5 passed by the learned Additional Chief Judicial Magistrate, Gumla whereby and where under cognizance has been taken for the offence punishable under Sections 3(I), (II), (V), (VII), (X), (XI) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act is quashed and set aside.