Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 880 (RAJ)

Kakka Singh v. State of Rajasthan

2016-06-16

GOVERDHAN BARDHAR

body2016
JUDGMENT : Goverdhan Bardhar, J. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 02.12.1994 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sriganganagar (for short "the trial court") in Sessions Case No. 79/94 whereby the learned trial Court convicted the accused-appellant for offences under Sections 447 IPC and Section 3(1)(v) of SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter "the Act of 1989") and sentenced him to undergo six months rigorous imprisonment along with Rs. 500/- fine and in default of payment of fine to undergo one month simple imprisonment. 2. As per the case set up by the prosecution, a FIR was lodged by complainant Daya Singh on 18.10.1992 stating therein that he has one plot No.6 situated in village 48 GB and for the said plot, the complainant obtained loan from the Bank and constructed two rooms over the plot. It is alleged that appellant Kakka singh wanted to encroach upon the said plot and build house on it and upon intervention of police, the appellant was prevented from building house. On 13.10.1992 when the complainant had went to Sriganganagar for some work, appellant trespassed on his plot and build one room and started residing. When the complainant came to know, he lodged the complaint at the police station and prayed that appropriate legal action may be taken against the appellant and he may be removed from the encroachment. 3. On the basis of said complaint, the Police registered FIR against the accused-appellant for offences under Sections 447 and 147 IPC and commenced investigation. After due investigation, the police filed challan against the accused-appellant for offences under Sections 447 IPC and Section 3(1) (v) of the Act of 1989 before the Judicial Magistrate, Anoopgarh. Thereafter the case was committed to the Court of Special Judge, Sriganganagar for trial. 4. After hearing the arguments and considering the material on record, the learned trial court framed charges against accused-appellant for the aforesaid offences, who pleaded not guilty and claimed trial. 5. During trial, the prosecution examined 7 witnesses and produced documentary evidences in support of its case. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. In defence, two witnesses DW/1 Kashmir Singh and DW/2 Rajendra Kumar were examined. 6. 5. During trial, the prosecution examined 7 witnesses and produced documentary evidences in support of its case. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. In defence, two witnesses DW/1 Kashmir Singh and DW/2 Rajendra Kumar were examined. 6. At the conclusion of the trial, the learned trial Court vide judgment and order dated 02.12.1994 convicted and sentenced the accused-appellant for the aforesaid offences. Hence, this criminal appeal. 7. Learned counsel for the appellant submits that a bare perusal of FIR and statement of complainant will go to show that the complainant has only alleged that he went to Sriganganagar on 13.10.92 and the appellant trespassed over the plot and built a house and the said FIR has been lodged on 18.10.92 after delay of five days which shows that the appellant has been falsely implicated in this case. It is argued that the complainant has filed the FIR only with a view to harass the appellant as no enquiry was made whether the appellant or the complainant is actually residing on the plot. It is further contended that the whole investigation was conducted by the A.S.I whereas, as per Section 3 of Act of 1989, it has been mentioned that an officer not belong the rank of Dy. S.P is authorized to conduct the investigation which is a mandatory provision made in the Act. Apart from this, no role has been assigned to the appellant for committing offence under the Act of 1989 and merely on the recommendation of the A.P.P, the offence under Section 3 of Act of 1989 has been added and challan was filed against the appellant, therefore, sentence awarded by the trial court for offences punishable under Section 3(1)(v) of the Act of 1989 is liable to be set aside. In support of his contention, counsel has placed reliance upon the judgment of the Apex Court in the case of State of A.P. v. Vishwanadula Chetti Babu [2011 AIR SCW 12] and the judgment of this Court in the case of Surendra Kumar v. State of Rajasthan, SB Cri. Appeal No.400/1992, decided on 20.05.2016. 8. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the petitioner. Appeal No.400/1992, decided on 20.05.2016. 8. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the petitioner. The learned PP submitted that there is no occasion either to interfere with the finding and the sentence awarded to the accused petitioner by the learned Court below nor any compassion or sympathy is called for in the said case. 9. I have considered the arguments raised on behalf of the parties and perused the judgment of the trial court as also the evidence on record. 10. In the case in hand, the trial court has framed charged against the appellant for offence under Section 447 IPC read with Section 3(1)(v) of the Act of 1989. Mangtu Khan (PW- 7), A.S.I, Police Station Ramsinghpur in his statement stated that at the relevant time, he was in-charge of the police station and the complainant had filed the report on 18.10.1992 and on the basis of said report, FIR (Ex.P/5) was registered and investigation was conducted by him. He has further stated that he has not taken any record with regard to the possession of plot. PW/6 Abhimanyu Singh, Dy. S.P. has stated that after investigation, the S.H.O. submitted the report to him for necessary action. 11. At this stage, reference needs to be made to Section 9 of the Act and Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as the 'Rules'). Section 9 of the Act and Rule 7 of the Rules read as follows : "Section 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 so,- (a) for the prevention of coping with any offence under this act, or (b) for any case of class of 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 particulars, 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 Subsection (1) in the execution of the provisions of this Act or any rule, scheme or order made there under. (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)." "Rule 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 post 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 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 of 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 investigation done by the Investigating Officer." 12. Thus, as would appear from Rule 7 of the Rules, investigation for the offences punishable under SC/ST Act can be made by a police officer not below the rank of Deputy Superintendent of Police and investigation of an offence under this Act made by an Officer not appointed in terms of Rule 7 is illegal and invalid. This matter has been considered by the Hon'ble Apex Court in the case of State of M.P. v. Chunni Lal @ Chunni Singh 2009 (65) ACC 652. In that case also, charge-sheet under certain sections of Indian Penal Code and Section 3(1)(X) SC/ST Act was filed on the basis of the investigation, which was carried out by a police officer, who was not authorized to make investigation in terms of Rule 7 of the Rules. On the matter being challenged by the accused persons, the High Court of Madhya Pradesh had quashed the entire proceedings against the accused persons. State of Madhya Pradesh preferred appeal before the Hon'ble Apex Court. On the matter being challenged by the accused persons, the High Court of Madhya Pradesh had quashed the entire proceedings against the accused persons. State of Madhya Pradesh preferred appeal before the Hon'ble Apex Court. After making reference of Section 9 of SC/ST Act and Rule 7 of the Rules, the Hon'ble Apex Court has held that trial of the accused under section 3 of SC/ST Act cannot proceed, but trial may be made for the offences under Indian Penal Code. The following observations made by Hon'ble Apex Court in para 6 of State of Madhya Pradesh v. Chunnilal @ Chunni Singh (supra) are worth mentioning :- "By virtue of its enabling power, it is the duty and responsibility of the State Government to issue notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of Police for different areas in the police districts. Rule 7 of the Rules provided rank of investigation officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer. 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 to 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 the I.P.C. and any of the offence enumerated in section 4 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 appropriate Court for the offences punishable under the I.P.C. 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." 13. In view of the judgment passed by the Apex Court in the case of Chunni lal (supra) so also in the case of Vishwanadula Chetti Babu (Supra) and the judgment of this Court in the case of Surendra Kumar (Supra), the investigation must have been performed by a specified Deputy Superintendent of Police. In view of the judgment passed by the Apex Court in the case of Chunni lal (supra) so also in the case of Vishwanadula Chetti Babu (Supra) and the judgment of this Court in the case of Surendra Kumar (Supra), the investigation must have been performed by a specified Deputy Superintendent of Police. Therefore, the objection raised by the counsel for the accused-appellant is found to be tenable and the conviction and sentence awarded to the accused-appellant by the trial court punishable under Section 3(1)(v) of the Act of 1989 is liable to be set aside. 14. Keeping in view aforesaid observations made by the Hon'ble Apex Court, in present case also, charge framed by the court below against the applicant under section 3(1)(v) SC/ST Act has to be quashed, because investigation for the offence under section 3 of SC/ST Act by ASI Mangtu Khan was illegal and invalid as held by Hon'ble Apex Court. By virtue of Rule 7 of the Rules framed under SC/ST Act, A.S.I. Mangtu Khan was not authorized to carry out the investigation of the offences punishable under SC/ST Act. Therefore, the trial of the appellant for the offence under section 3(1) (v) SC/ST Act can not proceed as investigation for this offence was made by a police officer, who was not authorized to carry out the investigation for the offences punishable under SC/ST Act. So far as the offences under Section 447 IPC is concerned, in the FIR (Ex.P/1) it has been alleged by the complainant that he is a member of Scheduled Caste and accused appellant has interfered in the enjoyment of his right over the allotted land for which Patta Ex.P/2A has been issued, therefore, the appellant cannot be charged with and tried separately for offence under Section 447 IPC. In view of the allegations levelled in the FIR constituting offence under Section 3(1)(v) of the Act of 1989, the investigation must have been performed by the Deputy Superintendent of Police. 15. In view of above discussion, the appeal is allowed. The conviction and sentence of accused-appellant for offences under Section 447 IPC read with Section 3(1)(v) of the Act of 1989 awarded by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sriganganagar appellant is hereby set aside and appellant is acquitted of offences under Section 447 IPC read with Section 3(1)(v) of the Act of 1989. Appellant is on bail. Appellant is on bail. His bail bonds are hereby discharged.