Ram Pal vs State of Rajasthan

Amaresh Ku. Singh, J.—Heard the learned counsel for the petitioner and the learned Public Prosecutor and perused the orders dated 16th March, 96 as well as the order dated 26th June, 96 passed by the learned Civil Judge (Jr. Division)-cum-Judicial Magistrate 1st Class Doongargarh in criminal case No. 116/96. By the order dated 16th March, 96, the learned Judicial Magistrate took cognisance of offence u/s 3(1) (iv) and (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and issued process against the accused Rameshwarnath, Deepanath, Chandunath and Sawannath, residents of village Purnasar, tehsil Doongargarh. By the same order, the learned Judicial Magistrate took cognizance of the offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and issued process against the police officers (1) the then Superintendent of Police, Churu and (2) the then Circle Officer (Shri Rampal the petitioner), who investigated the case and after investigation submitted the final report in the case. By order dated 26th June, 96, the learned Judicial Magistrate rejected the application by which the petitioner had raised certain objections against taking of cognizance of the offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and had requested that the proceedings against him should be dropped.

At the outset, it may be pointed out that the learned Judicial Magistrate has not even cared to mention the names of the police officers against whom he directed the issue of process by his order dated 16th March, 96. Similarly, in the second order dated 26th June, 96, the name of the petitioner, who had raised objections against the taking of cognizance has not even been mentioned. It is necessary that the subordinate Courts while disposing of applications filed by parties must indicate on whose behalf the application had been filed. The name of the applicant must be disclosed in the order passed by the subordinate Courts, failing to do so, would be regarded as a neglect of duty. Similarly, it is necessary that when processes are issued against any person or persons u/s 204, Cr.P.C. the name as well as sufficient particulars of the accused, who is to be proceeded against must be disclosed in the order so that no innocent person is arrested on account of a mistake which is likely to be committed if the names of the accused persons are not given in the order. Brevity to the extent of omitting the names of the parties, whose rights are affected by the order of the Courts, is neither permitted by law nor it is permitted by practice. Neglect on the part of the learned Judicial Magistrate in this behalf is serious and this Court expects that such neglect will not be committed by the subordinate Judicial Officers in future.

The facts necessary for the disposal of this petition may be summarised as below :-

One Gangu Ram filed a complaint in the Court of learned Judicial Magistrate alleging therein that he was the owner of agriculture field Khasra No. 605, measuring 44 bighas and 5 biswas situated in Rohi of village Punrasar. According to averments made in the complaint, the complainant had gone outside his village for the purpose of earning his living by working as labourer. He remained outside his village for 14 years and during this period his field remained uncultivated. It was alleged that RameshwarNath committed tress-pass on 10 bighas of the land belonging to the complainant. When the complainant came to know about it, he made a protest to Rameshwar Nath and Rameshwar Nath agreed to vacate the portion of the land, which he had tresspassed. But, when the season of sowing crop came, in place of vacating the land Rameshwar Nath, Deep Nath, Chandu Nath and Sawan Nath cultivated the land including 10 bighas in respect of which tresspass is alleged to have been committed by Rameshwar Nath. The complainant then went to the accused and in presence of Kusalaram and Kumbharam, the accused persons abused and threatened to tresspass the whole of his land and also threatened to beat him. On account of the persuation, the accused at the time did not beat the complainant.

The complaint filed by Gangu Ram was sent to the police under Sub-section of Section 156, Cr.P.C. for investigation. Investigation was entrusted to Shri Rampal Swami (petitioner).

After conducting investigation, the petitioner in his capacity as Investigating Officer came to the conclusion that no case for sending anyone for trial was made out. He, therefore, forwarded the investigation to the Superintendent of Police, Churu With his recommendation that the case was of a civil nature, therefore, a final report should be given. Later on, under the directions of the Investigating Officer, Daluram, Station House Officer of the Police submitted the final report in the Court of learned Judicial Magistrate.

After the submission of the final report in the Court, the learned Judicial Magistrate served the summons of the complainant. The complainant appeared in the Court with his counsel and opposed the final report. The order dated 16th March, 96 further shows that the complainant was examined u/s 200, Cr.P.C. and his witnesses Kusalaram and Kumbharam were examined u/s 202, Cr.P.C. After taking into consideration, the learned Judicial Magistrate took cognizance of the offence u/s 3(1) (IV), (V) and (VI) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and issued process against Rameshwar Nath, Deepnath, CHandunath and Sawannath.

After putting the signature below the order, the learned Judicial Magistrate proceeded to pass another order taking cognizance of the offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and directed the issue of process against the then Circle Officer and the District Superintendent of Police, Churu. The learned Judicial Magistrate ey en did not care to give the names of the accused persons against whom he directed the issue of process.

Rampal, who was the Investigating Officer and who had submitted the final report in the case mentioned above, filed an application before the learned Judicial Magistrate in which he raised several objections against taking of cognizance and issued of process. The application filed by Shri Rampal was rejected vide order dated 26th June, 96. In this order dated 26th June, 96, the name of the applicant has not been given by the learned Judicial Magistrate.

The learned counsel for the petitioner has submitted that the person, who has referred to in the application and the order dated 26th June, 96 is none other than the petitioner Rampal himself. In order to appreciate the arguments of the learned counsel for the petitioner, it would be proper to reproduce the relevant portion of the order dated 16th March, 96. The relevant portion reads :-

blds lkFk gh vuqlwfpr tkfr ,oa tutkfr �vR;kpkj fuokj.k� vf/kfu;e �1989� esa T;knk ftEesnkjh ls o fcuk fdlh Hk; ls r�rh''k dh tkos] blds fy, lh- vks- �o`Rrkf/kdkjh� jaSad ds iqfyl vf/kdkjh dks r�rh''k lkSaih tkrh gS] ml jSad ls uhps ds vf/kdkjh dks bu ekeyks esa r�rhl ugha lkSaih tkrh A bl izdj.k esa vius iw.kZ vuqlU/kku ds i''pkr lh-vks- us bl ekeys dks nhokuh iz�fr �flfoy uspj� dk ekuk gS A ;fn lh-vks- bl ekeysa dks nhokuh iz�fr dk ekurs Fks rks bl i=koyh esa vuqlU/kku esa bruk foyEc djus dh dkssbZ vko'';drk gh ugha Fkh ek= lhao dk fookn Fkk tks tks ns[kus ls irk pyrk Fkk] vkSj xokgku ds c;ku ls Hkh lkfcr gks jgk Fkk fQj jktLo deZpkjh ls [ksr uiokus dh dksbZ vko'';drk gh ugha Fkh vkSj tc [ksr uiokus ls Hkh Li"V gks pqdk Fkk vkSj bl vf/kfu;e dh /kkjk 3 �1�] �IV��V� ,oa �X� es Li"V :i esa vkrk gS rks flfoy uspj dk iz''u gh ugha mBrk A blds vykok ftyk iqfyl v/kh{kd]pq: dks] tc ;g i=koyh vkns''kkFkZ Hksth rks ,l-ih-] pq: us Hkh i=koyh ij miyC/k lkexzh ij fopkj ugha dj rF;ksa dh vuns[kh dh gS tks ,d mPpkf/kdkjh dh tku&cw> dj dh x;h ykijokgh gS] tks yksd lsod ds drZO; ikyu ds nkSjku fd, x, dk;Z dh ifjf/k esa ugh vkrk gS A mDr nksuksa gh iqfyl vf/kdkfj;ksa us i=koyh ij miyC/k rF;ksa dh vuns[kh dh gS vkSj vius drZO; ds izfr tkucw>dj ykijokgh cjrh gS A vr% i=koyh ij miyC/k leLr lkexzh dks /;ku esa j[krs gq, rRdkyhu lh-vks- rFkk ftyk iqfyl v/kh{kd] pq: ds fo:) vuqlwfpr tkfr ,oa tutkfr �vR;kpkj fuokj.k� vf/kfu;e 1989 dh /kkjk 4 dk vijk/k izFken`V;k cuuk ik;k tkrk gS A blfy, lh-vks- rFkk ftyk iqfyl v/kh{kd] pq: ds fo:) /kkjkl 4 vuqlwfpr tkfr ,oa tutkfr �vR;kpkj fuokj.k� vf/kfu;e 1989 ds vijk/k esa izlaKku fy;k tkrk gS A

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The order dated 26th June, 96 shows that as many as 5 grounds were urged before the learned Judicial Magistrate for dropping the proceedings, which had been initiated against the petitioner Rampal by order dated 16th March, 96. These grounds were as given below :-

(1) that the offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was punishable with imprisonment for a term which shall not be less than six months, but which may, extend to one year and therefore, the offence was non-cognizable offence and in the absence of any complaint, by the aggrieved person, cognizance of the offence could not have been taken.

(2) that the final report was submitted by the petitioner, who had investigated the case in bona fide exercise of his duty as an Investigating Officer and therefore, the cognizance of the offence could not be taken. The reliance was also placed on Section 22 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

(3) that since the act of submitting the final report was in discharge of duty as a public servant, the petitioner was entitled to protection of Section 197(1), Cr.P.C. and in the absence of sanction for prosecution cognizance could not be taken against him.

(4) that there was no occasion for taking of cognizance of the offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as none of the three conditions laid down in Sub-section (1) of Section 190, Cr.P.C. for taking cognizance were present.

(5) that in the absence of complaint against the petitioner and the Superintendent of Police, Churu, the cognizance of the offence could not have been taken merely on the basis of the final report.

The learned counsel for the petitioner has submitted that the impugned order passed by the learned Judicial Magistrate, Doongargarh are in excess of the legal jurisdiction conferred on him, they have resulted in harassment of the petitioner as well as that of the Superintendent of Police, Churu in as much as process has been issued against both of them without the sanction u/s 197, Cr.P.C. and that in the circumstances of the case, the impugned orders amount to abuse of the process of the Court and grave injustice has occurred to the petitioner.

The learned Public Prosecutor has found it difficult to justify the impugned orders passed by the learned Magistrate.

The first question to be decided is whether an offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was committed.

Section 4 reads :-

Punishment for neglect of duties - Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed by him under this Act, shall be punishable with imprisonment for a term which shall not be less than six months but which may extent to one year.

A bare reading of Section 4 shows that the offences, which are punishable under this section, must have been committed in respect of some duty to be performed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. If any duty is to be performed under any other Act (including the Code of Criminal Procedure), then the provisions of Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 do not apply.

The crucial question is whether the investigation was conducted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and whether the submission of final report was in respect of any duty prescribed under the Scheduled Cnstes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. If answer be in the affirmative, it will be said that the offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 may be committed. But, if the answer be in the negative, then it will have to be said that nooffence u/s 4 of the Schedu led Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 can be said to have been committed, if any public servant wilfully neglects his duties prescribed by any other law.

In the instant case, the complaint was sent to the police for investigation under Sub-section (3) of Section 156, Cr.P.C. The case was registered by the police in exercise of the powers given by the Code of Criminal Procedure. The investigation was conducted by the petitioner u/s 157 and other provisions of the Code of Criminal Procedure, 1973 and the final report, which the petitioner has submitted was in discharge of the duty prescribed by Section 173 Code of Criminal Procedure, 1973. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 does not provide any particular procedure for the investigation of the cases and therefore, in view of Section 4(2) the offence are required to be investigated, enquired into, tried or otherwise dealt with according to the provisions of Code of Criminal Procedure except to the extent the general provisions contained in the Code of Criminal Procedure are superseded by any special provision contained in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In view of this position of law, the submission of final report u/s 173 Code of Criminal Procedure, 1973 cannot be said to be an act done in exercise of the duty prescribed by or under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Consequently, I have no hesitation in coming to the conclusion that even if any neglect of duty in the conduct of investigation is committed by the Investigating Officer while purporting to act in exercise of the powers conferred by the Code of Criminal Procedure, 1973, the provisions of Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 would not be attracted unless it can be established that the wilful neglect of duty was committed by the Investigating Officer in relation to a duty prescribed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The learned judicial Magistrate does not appear to have considered the provisions of Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It would not be out of place to point out that prosecution and punishment for an alleged crime is a very serious matter and certain important constitutional safeguards are provided in Part III of the Constitution. Clause (I) of Article 20 of the Constitution provides that no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inilicted under the law in force at the time of the commission of the offence.

In order the fundamental right guaranteed by Article 20(1) of the Constitution may not be violated, it is necessary that the authorities, who feel called upon to initiate any action against any person for committing any offence should satisfy themselves whether the alleged offence in respect of which an action against any person is required to be taken is an offence under any law for the time being in force. It is, therefore, necessary that the provisions of law which declare an act to be an offence must be carefully read and interpreted before cognizance is taken and process is issued against any person.

For the reasons mentioned above, in the instant case, no offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 could be said to have been committed by the petitioner as wel 1 as by the Superintendent of Police, Churu, because the submission of the final report u/s 173, Cr.P.C. is in performance of the duty prescribed by the Code of Criminal Procedure and not by any provision of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

A bare reading of Section 4 shows that before an offence u/s 4 may be committed, it must be shown that a public servant has wilfully neglected his duties. A bona fide action, even though it may be erroneous, cannot be branded as wilful neglect of duty. In his order dated 16th March, 96 the learned Judicial Magis trate has himself observed :-

blds vykok ftyk iqfyl vf/k{kd] pq: dks] tc ;g i=koyh vkns''kkFkZ Hksth rks ,l-ih- pq: us Hkh i=koyh ij miyC/k lkexzh ij fopkj ugha djs rF;ksa dh vuns[kh dh gS tks ,d mPpkf/kdkjh dh tku&cw> dj dh x;h ykjokgh gS tks yksd&lsod ds drZO; ikyu ds nkSjku fd, x, dh ifjf/k esa ugha vkrk gSa A

The most charitable view which can be taken in the case is that the learned Judicial Magistrate was of the opinion that the Superintendent of Police, Churu neglected the performance of his duty, but a mere neglect: is not punishable u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

It has been observed by this Court in several cases that issue of process against any person on the allegation thai he has committed an offence is serious matter. It deprives the person of his personal liberty guaranteed by Article 21 of the Constitution. Therefore, before issue of process, it must be inquired into whether the ingredients of the offence are prirna facie established by the evidence produced before the officer of the Court.

Submission of a final report u/s 173, Cr.P.C. by the petitioner Rampal was obviously an act performed in discharge of his public duties as an Investigating Officer conducting investigation under the Code of Criminal Procedure, 1973. By no stretch of imagination it can be said that the submission of final report was not a part of his public duty. In these circuinstances, prima facie, the petitioner as well as the Superintendent of Police, Churu both were entitled to protection of Section 197, Cr.P.C. and no cognizance of offence could be taken against them without proper sanction. The view taken by the learned Judicial Magistrate that the petitioner is not entitled to protection of Section 197, Cr.P.C. is erroneous and cannot be maintained.

So far as role of Superintendent of Police, Churu is concerned, it is necessary to consider whether in the instant case the Superintendent of Police, Churu was required to perform any duty under the Code of Criminal Procedure in the matter of submission of the report u/s 173, Cr.P.C. u/s 156, Cr.P.C. the powers to investigate the case have been conferred upon the Officer Incbarge of the Police Station. Section 157, Cr.P.C. the Officer Incharge of the Police Station may himself proceed to the spot for investigation or he may depute one of his subordinate officers not being below such rank as the State Government may by general or special order, prescribe in this behalf. u/s 173, Cr.P.C. the report, after the completion of the investigation, is to be forwarded to a Magistrate empowered to take cognizance of the of fence by the Officer Incharge of the Police Station. These provisions clearly show that whatever duties have been prescribed by the Code of Criminal Procedure, 1973 so far as the submission o f the report u/s 173, Cr.P.C. is concerned, the duties have been prescribed for the Officer Incharge of the Police Station. The Superintendent of Police or other senior officers are not required to perform any duty unless of course they exercise the powers of the Officer Incharge of the Police Station in the case, either on account of their being as Officer Incharge of the Police Station or u/s 36, Cr.P.C. A perusal of the final report prepared by subordinate officer of the Superintendent of Police is in the capacity of an administrative senior officer and not as Officer Incharge of the Police Station. The learned Judicial Magistrate does not appear to have considered the legal provision in this behalf before passing the impugned order dated 16th March, 96.

There is another reason for quashing and setting aside the impugned orders passed by the learned Judicial Magistrate. It is this. Section 190, Cr.P.C. provides only three modes in which cognizance of the offence can be taken by the Court. The first is on the submission of the complaint oral or in writing before the Magistrate that a person known or unknown has committed an offence and that action should be taken against him. The second is on a police report submitted by the police u/s 173, Cr.P.C. and the third is on the basis of the personal knowledge; of the Magistrate or on the basis of an information received from any person other than police officer. In the instant case, there was no complaint under Clause (a) of Sub-section (1) of Section 190, Cr.P.C. alleging the commission of offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the Superintendent of Police, Churu and the Officer Incharge, who conducted the investigation and in the absence of a complaint, the power to take cognizance under Clause (a) of Sub-section (1) of Section 190 could not be exercised. The final report, which was submitted by the petitioner did not contain any facts which can constitute an offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Therefore, the learned Judicial Magistrate could not legally take cognizance of the offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Clause (b) of Sub-section (1) of Section 190, Cr.P.C. So far as Clause (c) of Sub-section (1) of Section 190,. Cr.P.C. is concerned, it is important to note that under the Code of Criminal Procedure 1898, a Magistrate could take (cognizance) offence even if there was ground for suspicion that an offence had been committed. But, when the Code of Criminal Procedure, 1973 was enacted, Clause (c) of Sub-section (1) of Section 190, Cr.P.C. was partly modified by deletion of the word "suspicion" In other words, the necessary effect of change brought about by the Code of Criminal Procedure, 1898 is that no Court (can) take cognizance under Clause (c) of Sub-section (1) of Section 190, Cr.P.C. merely on the basis of the suspicion that an offence has been committed. There must be either personal knowledge on the part of the Magistrate taking cognizance or there inust be information from any person other than a police officer that an offence has been committed. Final report was submitted by the police officer, and therefore, nothing contained in the final report could attract the provisions of Clause (c) of Sub-section (1) of Section 190, Cr.P.C. There is nothing to indicate that any person other than a police officer gave information to the learned Judicial Magistrate that an offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 had been committed by the Superintendent of Police, Churu and Circle Officer, who conducted the investigation. In these circumstances, the learned Judicial Magistrate could not invoke Clause (c) of Sub-section (1) of Section 190, Cr.P.C. for taking cognizance. He appears to have acted on the basis of a suspicion that the Investigating Officer neglected to perform his duty when he submitted F.R. in place of a charge-sheet and that the Superintendent of Police, Churu neglected his duty when he approved the final report pre-pared by the Investigating Officer. Since, suspicion cannot be the basis of cognizance under Clause (c) of Sub-section (1) of Section 190, Cr.P.C, the learned Judicial Magistrate was not justified in taking cognizance of the offence.

For the reasons mentioned above, I have no hesitation in coming to the conclusion that taking of cognizance of the offence u/s 4 of the Scheduled Castes and Scheduled Tribes (Prevention qf Atrocities) Act, 1989 was not permissible under anyone or more of the three clauses of Sub-section (1) of Section 190, Cr.P.C.

For the reasons mentioned above, the petition deserves to be allowed. The impugned order dated 16th March, 96 and the order dated 26th June, 96 so far they are related to the petitioner Rampal and the Superintendent of Police, Churu deserves to be quashed and set aside. The proceedings, which have been initiated against the above named officers are hereby dropped. A copy of this order be sent to the Judicial Magistrate, wherever he is posted for information and guidance.