Jwahir Sharma and Another vs State of U.P. and Another

Vijay Kumar Verma, J.—"What will be the effect and consequence of carrying out investigation by an unauthorized police officer for the offences under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (in short, ''the S.C./S.T. Act'')," is the only legal question that falls for consideration in this application u/s 482 of the Code of Criminal Procedure (in short, ''the Cr. P.C.'') by means of which, order dated 6.3.2009, passed by the Special Judge, S.C./S.T. Act, Varanasi in S.T. No. 623 of 2003 under Sections 452, 323, 504 and 506, I.P.C. and Section 3(1)(x) of S.C./S.T. Act, P.S. Cholapur, district Varanasi has been challenged. By the impugned order, application of the applicants-accused for quashing the proceeding of the session trial and sending the matter back to the lower court for further action has been rejected.

Shorn of unnecessary details, the facts leading to the filing of this application, in brief, are that a case under Sections 452, 323, 504 and 506, I.P.C. and Section 3(1)(x) of S.C./S.T. Act was registered at Case Crime No. C-1/1996 at P. S. Cholapur, district Varanasi on the basis of the F.I.R. lodged by Swarup Ram (O.P. No. 2 herein) against the applicants and other accused. After investigation, charge-sheet was submitted under aforesaid sections and on the case being committed for trial, S.T. No. 623 of 2003 was registered. After framing charges, the applicants-accused moved an application (paper No. 21B) in the Court of Special Judge, S.C./S.T. Act, Varanasi for quashing the proceeding of the case under S.C./S.T. Act and sending the file to lower court for further action. This application has been rejected vide impugned order, which has been challenged in this proceeding u/s 482, Code of Criminal Procedure.

I have heard arguments of Sri. S. D. Ojha, advocate appearing for the applicants and A.G.A. for the State.

It was vehemently contended by learned Counsel for the applicants that investigation for the offences punishable under S.C./S.T. Act, can be made by a police officer not below the rank of Deputy Superintendent of Police and since in present case, the investigation was made by Sub-Inspector and on the basis of that investigation, charge-sheet has been submitted by Circle Officer concerned, hence the case u/s 3(1)(x) of S.C./S.T. Act cannot proceed against the applicants. For this submission, my attention was drawn towards Section 9 of S.C./S.T. Act and Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. The contention of the learned Counsel for the applicants was that Sub-Inspector is not authorized to carry out the investigation of the offences under S.C./S.T. Act and hence, the charge-sheet submitted in present case for the offence u/s 3(1)(x) of S.C./S.T. Act, was illegal, on which cognizance could not be taken against the applicants and hence, the impugned order being illegal should be set aside and the charge framed against the applicants-accused u/s 3(1)(x) of S.C./S.T. Act be quashed.

In reply, it was submitted by learned A.G.A. that charge-sheet was submitted by the Circle Officer concerned and hence, interference by this Court in the impugned order would not be justified as no prejudice was caused to the applicants by carrying out the investigation by the Sub-Inspector.

Having taken the submissions made by learned Counsel for the parties into consideration, I am of the opinion that charge-sheet for the offence u/s 3(1)(x) of S.C./S.T. Act submitted by the Circle Officer concerned on the basis of the investigation carried out by the Sub-Inspector, Bhim Narain Tiwari was not valid and hence, the charge framed u/s 3(1)(x) of S.C./S.T. Act against the applicants is liable to be quashed, because their trial for the offence under S.C./S.T. Act cannot proceed, as the charge-sheet was filed on the basis of the investigation carried out by the Sub-Inspector, who was not authorized to make investigation of the offences punishable under S.C./S.T. Act.

For appreciating the rival submissions, 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 do,-

(a) for the prevention of coping with any offence under this Act, or

(b) for any case or class or 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 particular, 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 Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.

(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 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 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.

As would appear from Rule 7 of the Rules, investigation for the offences punishable under S.C./S.T. 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 recently in the case of State of M.P. v. Chunni Lal alias Chunni Singh (LV)2009 ACC 652 : 2009 (2) ACR 1916 (SC). In that case also, charge-sheet under certain sections of Indian Penal Code and Section 3(1)(x) of S.C./S.T. 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. After making reference of Section 9 of S.C./S.T. Act and Rule 7 of the Rules, the Hon''ble Apex Court has held that trial of the accused u/s 3 of S.C./S.T. 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 alias 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 Investigating 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 u/s 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 u/s 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 u/s 3 of the Act for taking cognizance of that offence.

Keeping in view aforesaid observations made by the Hon''ble Apex Court, in present case also, charge framed by the court below against the applicants u/s 3(1)(x) of S.C./S.T. Act has to be quashed, because investigation for the offence u/s 3 of S.C./S.T. Act by Sub-Inspector Bhim Narayan Tiwari was illegal and invalid as held by Hon''ble Apex Court. From the impugned order, it transpires that entire investigation was made by S.I. Bhim Narain Tiwari and on the basis of that very investigation, charge-sheet was submitted by the then Circle Officer, Cholapur. By virtue of Rule 7 of the Rules framed under S.C./S.T. Act, S.I. Bhim Narayan Tiwari was not authorized to carry out the investigation of the offences punishable under S.C./S.T. Act. Therefore, the illegality committed by S.I. Bhim Narayan Tiwari in carrying out the investigation of the offence punishable u/s 3(1)(x) of S.C./S.T. Act cannot be cured by submitting the charge-sheet by Circle Officer concerned, because investigation for the offences under S.C./S.T. Act cannot be made by a police officer not below the rank of Deputy Superintendent of Police as provided in Rule 7 ibid. Submission of the charge-sheet for the offence u/s 3(1)(x) of S.C./S.T. Act by Circle Officer on the basis of the investigation carried out by Sub-Inspector is not legal and valid. Therefore, trial of the applicants for the offence u/s 3(1)(x) of S.C./S.T. Act cannot 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 S.C./S.T. Act. However, trial of the applicants for the offences under Indian Penal Code would be continued, but the case may be transferred to the Chief Judicial Magistrate, Varanasi as provided u/s 228, Code of Criminal Procedure as after quashing the charge u/s 3(1)(x) of S.C./S.T. Act, other offences for which the applicants have been charged are triable by the Court of Magistrate.

Consequently, the application u/s 482, Code of Criminal Procedure is allowed. Setting aside the impugned order dated 6.3.2009, passed by the Special Judge, S.C./S.T. Act, Varanasi in S.T. No. 623 of 2003, State v. Lallan Sharma and Ors. the charge u/s 3(1)(x) of S.C./S.T. Act framed by the court below against the applicants is quashed, but the trial for the offences under Indian Penal Code would be continued, which may be transferred to the Chief Judicial Magistrate, Varanasi as stated hereinabove.