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2018 DIGILAW 304 (ORI)

Bidyadhar Samal v. State

2018-03-26

S.K.SAHOO

body2018
JUDGMENT : S.K. Sahoo, J. The petitioner Bidyadhar Samal in this application under section 482 of Cr.P.C. has challenged the impugned order dated 20.06.2002 passed by the learned J.M.F.C., Baramba in G.R. Case No. 49 of 2000 in taking cognizance of the offences under sections 450/376/506 of the Indian Penal Code and section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter in short ‘SC & ST (POA) Act’) and issuance of process against him. The said case arises out of Baramba P.S. Case No.49 of 2000. 2. It appears that on the basis of first information report submitted by the victim before the officer in charge of Baramba police station on 28.04.2000, Baramba P.S. Case No.49 of 2000 was registered under sections 450/376/506 of the Indian Penal Code and section 3 of the SC & ST (PA) Act. After registration of the case, the officer in charge himself took up investigation of the case, examined the victim and other witnesses, visited the spot, seized incriminating materials, sent the victim for medical examination, seized the wearing apparels and vaginal swab of the victim collected by the Medial Officer and prayed before the learned J.M.F.C., Baramba for recording the 164 Cr.P.C. statement of the victim, seized the caste certificate of the victim and then on his transfer, the charge of investigation was taken over by his successor on 18.03.2001 who obtained the medial examination report of the victim, conducted raid at different places for arresting the petitioner and subsequently on his transfer, his successor took over charge of investigation on 08.05.2002. On 15.05.2002 the S.D.P.O., Athagarh took over charge of investigation and on 02.06.2002, he submitted charge sheet under sections 450/376/506 of the Indian Penal Code and section 3 of the SC & ST (PA) Act. 3. None appears on behalf of the petitioner so also on behalf of the informant. 4. On 15.05.2002 the S.D.P.O., Athagarh took over charge of investigation and on 02.06.2002, he submitted charge sheet under sections 450/376/506 of the Indian Penal Code and section 3 of the SC & ST (PA) Act. 3. None appears on behalf of the petitioner so also on behalf of the informant. 4. On perusal of the grounds taken in the CRLMC application, it is mentioned that the ingredients of offence under section 376 of the Indian Penal Code are not attracted and since the investigation has been conducted substantially by the Officer in charge of Baramba police station and the S.D.P.O., Athagarh after taking over the charge of investigation formally submitted charge sheet, therefore, the order of taking cognizance under section 3 of the SC & ST (POA) Act is vitiated in the eye of law in view of the Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereafter “SC & ST (POA) Rules”). 5. Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate produced the case diary and submitted that the statement of the victim is very clear regarding the commission of offence under section 376 of the Indian Penal Code. He placed the statement of the victim. 6. After going through the first information report which was lodged by the victim who is a married lady as well as her statement, it appears that she has clearly stated that in the intervening night of 26/27.04.2000, the petitioner entered inside her house and committed rape on her and gave threat to her not to disclose about the incident before anybody. On the basis of materials on record, prima facie case under section 376 of the Indian Penal Code is clearly made out and therefore, no fault can be found with the investigating officer in submitting the charge sheet under sections 450, 376 and 506 of the Indian Penal Code and also with the Magistrate in taking cognizance of such offences. 7. So far as the offence under section 3 of the SC & ST (PA) Act is concerned, Rule 7 of SC & ST (POA) Rules 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. 7. So far as the offence under section 3 of the SC & ST (PA) Act is concerned, Rule 7 of SC & ST (POA) Rules 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. (2) The investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority basis 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 to 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 the every quarter the position of all investigations done by the investigating officer.” 8. In case of Maheswar Panda Vs. State of Orissa reported in (2003) 24 Orissa Criminal Reports 135 where the petitioner challenged the sustainability of the order of taking cognizance under section 3 of the SC & ST (POA) Act and also the maintainability of the charge sheet on the ground that the investigation was done by an officer below the rank of D.S.P., it was held as follows:- “9. The provision in Section 9 of the Act, Rule 7 of the Rules, Section 4 of the Cr.P.C. and the aforesaid ratio leads the situation to irresistible conclusion that an investigation to an offence under Section 3 of the Act by an officer not appointed in terms of the said provision of law is illegal and invalid. But when the offences complained are both under the Indian Penal Code and any of the offences enumerated in Section 3 of the Act, then the investigation which is being made by a competent Police Officer in accordance with the provision in Cr.P.C. cannot be and should not be quashed for non-investigation of the offence under Section 3 of the Act by a competent Police Officer. In such a situation the Criminal Proceeding shall proceed in appropriate Court for the offences punishable under the Indian Penal Code notwithstanding investigation and the charge-sheet being not liable to be accepted only with respect to the offence under Section 3 of the Act for taking cognizance of that offence. 10. Taking that view in the matter, so far the present case is concerned, this Court finds that the order of cognizance taken by the Sessions Judge-cum-Special Judge, Cuttack being contrary to the law pronounced by Apex Court in the case of Gangula (supra), therefore, the order of cognizance dated 20.08.1999 stands quashed. It will be appropriate for the learned Special Judge to remit the G.R. case to the Court of concerned Magistrate who shall deal with the case for cognizance or otherwise but in accordance with law. If the prosecution shall move for investigation into the case by a competent Police Officer because of involvement of the offence under Section 3 of the Act, such application be duly considered by learned cognizance-taking Magistrate if the prosecution will take prompt steps in that respect within a period of six weeks.” 9. In case of Basanta @ Basanta Kumar Palai Vs. State of Orissa reported in (2005) 31 Orissa Criminal Reports 233, it is held as follows:- “On the allegation that mandatory provision of Rule 7 of the S.C. & S.T. (P.A.) Rules has been violated in G.R. Case No.1020 of 1999 wherein although the case was registered under Section 3 of the S.C. & S.T. (P.A.) Act along with other sections of the Penal Code, the investigation was taken up by the A.S.I. of Police of Rajnagar Police Station and on the date of submission of charge sheet i.e. 17.04.2000, the S.D.P.O., Kendrapara took charge of the investigation and submitted charge sheet on the very same day against the petitioners under Section 3 of the S.C. & S.T. (P.A.) Act along with other sections of the Indian Penal Code. This is very much apparent from the copy of the charge sheet which is annexed to this petition. The S.D.P.O. has himself mentioned that he took charge of the investigation and submitted charge sheet on 17.04.2000. This is very much apparent from the copy of the charge sheet which is annexed to this petition. The S.D.P.O. has himself mentioned that he took charge of the investigation and submitted charge sheet on 17.04.2000. There being a clear violation of the Rule 7 of the S.C. & S.T. (P.A.) Rules which mandates that the offence of the S.C. & S.T. (P.A.) Act has to be investigated into by the Gazette Police Officer not below the rank of D.S.P. and when that has not been done in this case, cognizance taken under Section 3 of S.C. & S.T. Act by the learned J.M.F.C., Pattamundai is hereby quashed. However, the case against the petitioner under the other penal provision shall continue.” 10. In case of Pradeep Pradhan Vs. State of Orissa reported in (2005) 30 Orissa Criminal Reports 416, this Court has held that since one of the offences involved in the case was under section 3 of the SC & ST (POA) Act and the investigation was conducted by the Sub Inspector of Police who handed over the charge of investigation of the case to the S.D.P.O., Sadar as per instruction of the Additional S.P. and the S.D.P.O. except making search and raid for apprehending the accused persons, had not done anything which can be construed as ‘investigation’ as defined in section 2(h) of the Cr.P.C., charge sheet so submitted by the D.S.P. can never be said to have been filed on the basis of investigation made by him in terms of the statutory provisions and therefore, the investigation made is illegal being violative of Rule 7 of the Rules and accordingly, the order of taking cognizance under section 3 of the SC and ST (POA) Act was set aside. If the charge sheet has been filed by the D.S.P. on the basis of the investigation made by an officer not in the rank of D.S.P., it can never be said to have been filed on the basis of the investigation made by him in terms of statutory provisions and, therefore, the investigation made is illegal being violative of Rule 7 of the Rules. 11. In case of Ranjit alias Rajat Ku. Das Vs. 11. In case of Ranjit alias Rajat Ku. Das Vs. State of Orissa reported in (2003) 25 Orissa Criminal Reports 459, it is held that the investigation of the case which involves also the offence under section 3 of the SC & ST (POA) Act was conducted by the Sub Inspector of police but charge sheet was submitted by the Deputy Superintendent of Police and therefore, the order of taking cognizance of offence under section 3 of the SC & ST (POA) Act was set aside. 12. In case of Sanjaya Rout Vs. The State reported in (2005) 31 Orissa Criminal Reports 586, similar view was also taken and cognizance taken by the learned Magistrate to prosecute the petitioner of the offence under section 3 of the SC & ST (POA) Act was quashed. 13. In the instant case, a perusal of the case diary clearly shows that the first information report was registered under section 3 of the SC & ST (POA) Act along with other offences but in spite of that the investigation was conducted by three Sub- Inspectors of police one after another who were acting as officer in charge of the concerned police station and ultimately on 15.05.2002 the S.D.P.O., Athagarh took over charge of investigation as per the order of Supdt. of Police, Cuttack and he formally submitted charge sheet on the basis of investigation made by those earlier officers. Therefore, I am of the humble view that the submission of the charge sheet for the offence under section 3 of the SC & ST (POA) Act was not in accordance with the statutory provisions i.e. Rule 7 of SC & ST (POA) Rules which lays down that the investigation of such offence is not permissible by an officer below the rank of D.S.P. 14. Therefore, the order of taking cognizance of offence under section 3 of the SC & ST (PA) Act stands quashed. 15. The order of taking cognizance for the other offences i.e. under sections 450/376/506 of the Indian Penal code passed by the learned J.M.F.C., Baramba, stands confirmed. 16. Therefore, the order of taking cognizance of offence under section 3 of the SC & ST (PA) Act stands quashed. 15. The order of taking cognizance for the other offences i.e. under sections 450/376/506 of the Indian Penal code passed by the learned J.M.F.C., Baramba, stands confirmed. 16. If the prosecution moves an application for investigation of the case by a competent police officer for the offence under section 3 of the SC & ST (POA) Act, such application shall be considered by the learned Magistrate in accordance with law within four weeks from today otherwise the learned Magistrate shall proceed with the case in respect of the other offences for which the order of taking cognizance by him has been confirmed by this Court. 17. Accordingly, the CRLMC application is disposed of.