Joseph D. Bhosle vs State of M.P.

Deepak Verma, J.

This is a petition filed u/s 482 of Code of Criminal Procedure 1973, with a prayer for expunging the remarks and for quashment of the direction for investigation, as passed against the petitioner by the learned Special Judge, Rewa, in Special Case No.03/2005 in the judgment and order pronounced by him on 22-03-2006.

Brief history of the case relevant for deciding this petition are mentioned herein below.

An incident had taken place on 07-11-2004 at about 7 AM. First Information Report to this effect was lodged by injured Nichau (PW/1). Initially, offences u/s 147, 148, 323/149, 307/149, 294 and 506-11 of IPC were registered.

It is also pertinent to mention here that in the FIR lodged by Nichau (PW/1), there was no allegation that accused knew that complainant party belong to SC category and yet objectionable words were used against the complainant party.

In the said incident Nichau, Lahru, Daulat and Shivlal had sustained bodily injuries. Subsequently Shivlal succumbed to the injuries sustained by him. Consequently, as a result of death of Shivlal an offence u/s 302 of IPC in the aforesaid offences was also added.

At the relevant point of time, the petitioner was discharging his duties as Station House Officer of Mauganj, Rewa. He completed the investigation, arrested the accused and charge sheet was prepared by him. As required under the provisions of Criminal Rules and Orders, the matter had to be sent to District Prosecuting Officer so that he is able to examine the case. In this case, after preparation of the charge sheet, the matter was sent to Additional District Prosecuting Officer to examine the case.

After having gone through the challan papers prepared by the petitioner, the then SDO (P) Shri S.P. Dwivedi made a remark in the ''Kafiat Column'' of charge sheet (Ex. P-29) that deceased Shivlal belonged to scheduled caste, thus charge u/s 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) be also added.

After having gone through the said remarks made by SDO (P), the petitioner did not participate further in filing of the challan. Thereafter, the challan was actually filed by the SDO(P) Shri S.P. Dwivedi and after committal, it was sent to the aforesaid Special Judge for trial in accordance with law.

The learned Special Judge convicted five accused and granted benefit of doubt only to accused Gendu. They were all found guilty for commission of offences under Sections 148, 323/149, 323 and 302/149 of IPC and accordingly sentences were awarded to each of the accused. Their criminal appeal against the judgment and sentence is pending disposal in the High Court at Jabalpur.

Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as Rules of 1995) which is material for deciding the said petition is reproduced herein below:

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 alongwith 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 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 investigations done by the investigating officer.

Perusal of the aforesaid Rules of 1995 makes it evidently clear that as soon as ingredients with regard to commission of offences by accused against the complainant belonging to SC/ST were established, then the investigation has to be completed by an officer not below the rank of Deputy Superintendent of Police and charge sheet is also to be filed by the said officer.

It has not been disputed before us that at the relevant point of time, Shri S.P. Dwivedi was holding the charge of SDO(P) Mauganj, which is equivalent to Deputy Superintendent of Police. As has been mentioned herein above that charge sheet was also ultimately filed by him only and the petitioner, as soon as he came to know that charge u/s 3(2) (v) of the Act, is also being added, he did not further participate in completion of the charge sheet and in filing of the same, which was actually then done by SDO(P).

However, the learned Special Judge while pronouncing the judgment made unwarranted and disparaging remarks against the conduct of this petitioner as well as against Shri S.P. Dwivedi, the then SDO(P) Mauganj.

Not only this, be found that there was clear cut violation of Rule 7 of Rules, 1995. Thus, both of them have been found guilty for commission of offence u/s 4 of the Act, and also u/s 201 of IPC.

Pursuant to the aforesaid observations made by the learned Special Judge, preparations are being made for filing the charge sheet against the present petitioner. This has led the petitioner to approach this court u/s 482 of CrPC with a prayer for expunging the said remarks and for quashing the intended prosecution.

We have, accordingly, heard Shri Manish Datt, learned counsel for the petitioner and Shri Sanjay Yadav, Deputy Advocate General for the State at length and perused the records.

To satisfy ourselves, whether the petitioner was given any opportunity of hearing before passing the said remarks, we have critically gone through the order sheet and judgment dated 22-03-2006. The record does not reflect anywhere either in the order sheet of the said date or in the judgment that the petitioner was noticed or was afforded any opportunity of hearing before passing of the said remarks. Thus, at the outset, it is crystal clear that the principles of natural justice have not been followed.

Apart from the above, perusal of para 39 of the impugned judgment would show that the learned Special Judge himself has recorded a finding that no ingredients were made out by the prosecution to attract the provisions of Section 3 (2) (v) of the Act but since deceased Shivlal belonged to scheduled castes thus only with an intention to give benefit to the accused this particular provision was not invoked. It is indeed surprising that the learned Special Judge himself came to the conclusion that the provisions of Section 3(2) (v) of the Act, were not at all attracted, however, still in subsequent para-47, the petitioner has been held guilty for violation of Rule 7 of Rules 1995. This was highly unwarranted. If the provisions of Act were not attracted and applicable, obviously the petitioner could not have been held guilty for violation of Rules of 1995.

As has been mentioned herein above that the petitioner has not participated in further proceedings with regard to completion of the investigation and filing of the challan, as soon as he came to know that in the ''Kafiat Column'' section 3(2) (v) of the Act has been added by the SDO(P). Thereafter, it was SDO(P) who took over the completion of the remaining part of the investigation and filing of the challan. In this view of the matter, we are of the anxious consideration that such remarks were not at all required to be made. They were neither necessary nor called for proper adjudication of the special case pending before him.

Learned counsel for the petitioner has placed reliance on several authorities of Supreme Court and this court, starting from Dr. Raghubir Sharan Vs. The State of Bihar, , The State of Uttar Pradesh Vs. Mohammad Naim, , AIR 2000 SC 1876 (Masumsha Shah Hasanasha Musalman Vs. State of Maharashtra). State of Karnataka Vs. The Registrar General, High Court of Karnataka, , AIR 2001 SCC (7) 148 (Mahabir Singh Vs. State of Haryana) and The State of West Bengal and Others Vs. Babu Chakraborty, . Last judgment that has been reported is in JT 2006 6, Popular Muthaih Vs. State, page 332. Thus the law on the question of making remarks against a party without affording any opportunity of hearing to him is well settled.

The gist of the aforesaid judgments would show that first of all no such remarks should have been made unless the petitioner was issued a notice and was then afforded an opportunity of hearing. Non observance of the aforesaid settled position of law tantamount to violation of the principle of natural justice. Secondly, it is also to be seen that such remarks were highly uncalled for and unwarranted as the same were neither necessary nor required for effective pronouncement of the judgment and order of conviction. Apart from the above, when the learned Special Judge, himself has come to the conclusion that the ingredients of Section 3(2) (v) of the Act, were not made out by the prosecution and none of the accused has been found guilty for commission of the said offence, how the police officers, who were discharging their duties could have been held guilty for commission of an offence u/s 4 of the Act and u/s 201 of the I.PC. It would have been durable the learned Special Court did not make such strong remarks castigating the police officials, judicial restraint should have dissuaded the learned Special Court from making such unnecessary castigation. Thus, for all these reasons, we are of the opinion that para 47 of the impugned judgment pronounced by the Special Judge on 22-3-2006 in Special Case No.03/2005 was neither required nor called for pronouncement of the judgment and order of conviction. As a necessary consequence thereof the aforesaid remarks made against the petitioner would stand expunged.

Needless to say pursuant thereto, no action would be taken against the petitioner. With the aforesaid direction this petition stands allowed to the extent mentioned herein above. In case any offence has been registered u/s 4 of the Act and u/s 201 of IPC, the same would automatically stands quashed.