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2017 DIGILAW 643 (CAL)

Nanda Dulal Biswas v. State of West Bengal

2017-07-25

SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : SIDDHARTHA CHATTOPADHYAY, J. 1. The petitioner sought for quashing of proceedings in connection Chinsurah Police Station Case No. 306 of 2014 dated 11.07.2014 under section 3 (X) of the Schedule Castes & Schedule Tribes (Prevention of Trustees) Act 1989, corresponding to G.R. Case No. 1331 of 2014. He has prayed for quashing mainly on two counts:- 1. The F.I.R. does not bear any averment that the accused petitioner belongs to higher castes and that the de facto complainant is a member of schedule castes community. 2. There is no substantial compliance of section 9 Rule 7 of the Act which is mandatory in view of judicial pronouncement. It was also faintly argued that if the head master concerned (the accused petitioner) told him that the de facto complainant would not be permitted to join by him, then how the de facto complainant took the classes of the students 2. The learned Counsel appearing on behalf of the present petitioner mainly highlighted those aspects supported by judicial pronouncements (Darshan Singh Saini v. Sohan Singh & Anr.) reported in (2016)2 SCC (Cri.) 418 and (State of Madhya Pradesh v. Chunilal alias Chunni Singh) reported in (2010)1 SCC (Cri.) 683. According to him, there is no substantial compliances of section 9 Rule 7 of the Act and so the proceedings should be quashed. The learned Counsel appearing on behalf of the state argued that the concerned S.P. has directed the Deputy Superintend of Police to conduct investigation and so there is total compliance of section 9 Rule 7 of the Act. 3. At the very outset, this court is to go through the contents of the F.I.R. to ascertain whether it discloses any offence or not. On perusal of the petition of complaint this court does not find any averment that the accused petitioner belongs to higher caste. The learned Counsel appearing on behalf of the petitioner relied on the decision reported in connection with (Darshan Singh Saini v. Sohan Singh & Anr.) reported in (2016)2 SCC (Cri.) 418. It has been held by the Hon'ble Apex Court that the de-facto complainant did not indicate in his complaint that the appellant belongs to an upper caste. On that ground that the Hon'ble Apex Court did not find any justification in interfering with the impugned order passed by the said High Court. It has been held by the Hon'ble Apex Court that the de-facto complainant did not indicate in his complaint that the appellant belongs to an upper caste. On that ground that the Hon'ble Apex Court did not find any justification in interfering with the impugned order passed by the said High Court. Regarding compliance of section 9 Rule 7 he has relied on the decision in connection with (State of Madhya Pradesh v. Chunilal alias Chunni Singh) reported in (2010)1 SCC (Cri.) 683. Hon'ble Apex Court while dealing with the said case has come to a finding "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. Section 9 of the said Act speaks that there must be a notification in the official gazette, on any officer of the State Government the powers exercisable by police officer under the Code of such district or part of thereof or, as the case may be, for such case or class or group of case, and in particular the powers of arrest, investigation and prosecution of presence before any Special Court." On being asked by this Court, learned Counsel appearing on behalf of the state could not produce any notification in the official gazette in connection with section 9 of the Act. Therefore, it can be safely concluded that there is no substantial compliance of mandatory provision of section 9 of the Act. 4. The learned Public Prosecutor in charge could not justify the averment made in the F.I.R. that if the head master concerned (the accused petitioner) told him that the de-facto complainant would not be permitted to join, and to take class then how the victim attended his classes. 5. Therefore, on the basis of the aforesaid decisions of our Hon'ble Apex Court, this court is of the view that the proceedings in connection with G.R. Case No. 1331 of 2014 should not be allowed to continue. 6. Accordingly, the revisional application succeeds. The above said proceedings be quashed accordingly. Let a copy of this order be sent to the learned Court below for information and taking necessary action in accordance with law. 6. Accordingly, the revisional application succeeds. The above said proceedings be quashed accordingly. Let a copy of this order be sent to the learned Court below for information and taking necessary action in accordance with law. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.