Ananta Kumar Sahu vs State of Orissa

P.K. Tripathy, J.—Petitioner, who is the accused in G.R. Case No. 108 of 1999 of the Court Sessions Judge-cum-Special Judge, Cuttack, has prayed to quash the order of cognizance as per the impugned order dated 27.8.1999. In that case cognizance of the offence under Sections 341, 323, 294, Indian Penal Code read with Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, ''the Act'') has been taken by learned Session Judge-cum-Special Judge, Cuttack as per the impugned order. This case was heard along with a batch of cases involving offence u/s 3 of the Act, but each of the cases is disposed of as per separate judgments. It be noted here that both the parties consented for disposal of the application u/s 482, Code of Criminal Procedure at the stage of admission.

It is stated in the application u/s 482, Code of Criminal Procedure that on the basis of a false allegation of Petitioner scolding, abusing and assaulting the informant, P.S. Case No. 29 of 1999 was registered in Mahanga Police Station for the aforesaid offences, and the investigation was conducted by an A.S.I. of Police and the O.I.C. submitted charge-sheet and thereafter, learned Special Judge received the charge-sheet and took cognizance of the offence. Though in the application u/s 482, Code of Criminal Procedure Petitioner has challenged the order of cognizance as illegal due to non-application of mind to the materials in the case diary by the Special Judge and for non-consideration by that Court about violation of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, but at the time of argument, referring to the case of Gangula Ashok and Anr. v. State of A.P. (2000) 18 OCR (SC) 364, he argued that learned Sessions Judge-cum-Special Judge, Cuttack should not have accepted and entertained the charge-sheet to pass order of cognizance in the absence of an order of commitment. In paragraph 16 of that judgment Apex Court has held that:

Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straightway be laid before the Special Court under the Act.

In view of that, the impugned order of cognizance is not sustainable in the eye of law and accordingly quashed. Learned Sessions Judge is directed to send back the case record of the aforesaid G.R. Case, if not already done, to the Court of the concerned Magistrate to deal with that Criminal Proceeding in accordance with law.

Learned Standing Counsel appearing for the opposite party, State of Orissa concedes that an investigation into an offence punishable u/s 3 of the Act cannot be undertaken by a Police Officer below the rank of Deputy Superintendent of Police. In the case of In Re: Sessions Judge-cum-Special Judge, Cuttack v. State of Orissa (2002) 22 OCR 92, this Court has held that appointment of the Investigating Officer must be made in conformity with the provision in Section 9 of the Act and Rule 7 of the Rules. This Court in the other cases (out of the batch of cases) disposed of today, after taking note of the aforesaid decision of this Court and a catena of decisions from the Apex Court and various High Courts, has held that order of cognizance of the offence u/s 3 of the Act is not sustainable unless the investigation has been conducted by a competent Police Officer appointed in accordance with Section 9, read with Rule 7 of the Rules. That aspect shall be borne in mind by the cognizance taking Magistrate while considering the question of taking cognizance. However, this Court has observed (in the batch of cases) that if the investigating/prosecuting agency shall propose for investigation by a competent police officer relating to the offence u/s 3 of the Act, that aspect shall be considered by the cognizance taking Magistrate in accordance with law and further that if a charge sheet is submitted for the offence punishable under Indian Penal Code and Section 3 of the Act by a Police Officer who is not appointed in accordance with Section 9 of the Act read with Rule 7 of the Rules, then notwithstanding not taking cognizance of the offence u/s 3 of the Act the cognizance taking Magistrate on perusal of the case diary if satisfied about existence of prima facie case for the offences under the Indian Penal Code and about lawful investigation in that respect, then he may proceed with the Criminal Proceeding in accordance with law. The same view is adopted so far as the present case is concerned.

So far as the contention of the Petitioner relating to falsity in the allegation, that is a matter to be considered by the Courts below at appropriate stage if raised by the Petitioner.

For the reasons indicated above, while setting aside the order of cognizance and allowing the application u/s 482, Code of Criminal Procedure this Court directs the Sessions Judge-cum-Special Judge, Cuttack so also the concerned cognizance taking Magistrate to proceed with the case in accordance with law and the aforesaid directions.

The Criminal Misc. Case is disposed of.

Ordered accordingly.