Mohan Choudhary vs State of Bihar and Others

Choudhary S.N. Mishra, J.—In this application, the petitioner has prayed for quashing of the investigation in Biraul PS. Case No. 56 of 1995, initiated on the basis of F.I.R. for offences punishable u/s 302 and other ancillary Sections of the Indian Penal Code including Section 3(1) and 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Admittedly, after usual investigation, final form has been submitted and on the basis thereof cognizance was taken of the offences punishable u/s 302 and other ancillary Sections of the Indian Penal Code including Section 3(1) and 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as stated above and the case was committed to the Court of Session.

Having regard to the facts stated above, the prayer for quashing the investigation has become infructuous since the final form has already been submitted and the case has been committed to the Court of Session. Mr. Shukla, learned Sr. Advocate appearing on behalf of the petitioner, has then challenged the order of taking cognizance of an offence punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act on the ground that in the instant case, the Dy. S.P. has investigated the case and submitted the charge-sheet who was not vested with the power to investigate with respect to the offence. In support of his contention, learned Counsel has referred to Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 which reads thus:

Investigating Officer:

(1) An offence committed under the Act shall be investigated by a police officer not below the rank of Dy. S.P. 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 perceived the implication of the case and investigate 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 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.

It is submitted that the State Government in term of the rule aforesaid, has not issued notification appointing the Dy. S.P. to investigate the offence punishable under the said Act and as such the very investigation on the basis of which cognizance was taken under the said Act is vitiated in law. In order to appreciate the arguments of Mr. Shukla, Section 9 of the Act is to be (...sic) which reads thus:

Conferment of Power.-(1) Notwithstanding anything contained in the Code or in any other provisions of this Act, the State Government may, if it considers it necessary or expedient so to do-

(a) for the prevention of and for 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 power 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 of 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 the Government shall assist the officer referred to in Sub-section(1) in the execution of the provision 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-rule (1).

Admittedly, in spite of sufficient opportunity given to the State, no such notification has been produced before this Court, on the contrary, a counter-affidavit duly sworn by the Secretary, Department of Home, Government of Bihar, has been filed stating, inter alia, that having regard to the provision as envisaged under Rule 7 of the said Rules, it is not necessary to issue notification in terms of Section 9 of the Act as referred to above and on the basis of the statements made in the counter-affidavit, learned Counsel for the State submits that the rule provides to investigate the offence under the said Act by an officer not below the rank of Dy. S.P. and in the instant case, Dy. S.P. has investigated the offence and submitted the final form which cannot be said to be illegal. The statements made in the counter-affidavit as well as the submissions made on behalf of the State seems to be wholly misconceived in view of the provisions of the Act as quoted above. Rule 7 of the said Rules specially envisaged that the officer not below the rank of Dy. S.P. shall be appointed to investigate such offence who is experience in line and, therefore, the notification has to be issued by the State Government taking into consideration the requirement as laid down in the Rules aforesaid. Learned Counsel in opposition, however, stated that since the Dy. S.P. was appointed to investigate the offence, it will be presumed that he is fully competent and qualified to investigate the offence in terms of the Rules, aforesaid. No such letter of appointment has been produced in support of his contention to the effect that the State Government has appointed Dy. S.P. to investigate the matter. As such the submission of the learned Counsel for the State has to be rejected.

Accordingly, for the reasons stated hereinabove, the very cognizance of an offence punishable u/s 3(1) and 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the basis of the final form submitted by the Dy. S.P. who was not legally authorised to investigate the offence is vitiated in law and accordingly the order of cognizance so far as the offence punishable under the said Act is quashed. As regards the offence punishable under the general law, Mr. Shukla submits that due to mala fide intention, the petitioner has been involved in the offence at the behest of the same Investigating Officer against whom he has brought privilege motion in the Legislative Assembly only six months before the date of occurrence. The sum and substance of the submission of Mr. Shukla is that the instant proceeding is mala fide one in view of the past differences with the Investigating Officer who is instrumental to involve the petitioner in the instant case. At this stage, I am not inclined to express any opinion on the merit of the submission in view of the fact that the matter is pending before the trial Court and the petitioner, if so advised, may file an application in term of Section 227 of the Code of Criminal Procedure which shall be considered and disposed of with reference to the materials available on the record in accordance with law without being prejudiced by the order of this Court.

In the result, this application is partly allowed to the extent indicated above.