Ramesh Chandra Das and Others vs Kasinath Jena and Another

L. Mohapatra, J.

The petitioners in this application under Sections 482 of the Code of Criminal Procedure have challenged the legality of the order dated 9.2.2000 passed by the Special Judge, Bhadrak, taking cognizance of the offences committed under Sections 294 and 323 read with Section 34 of the Penal Code and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Act''). 2. Shri D.P.Dhal, learned counsel appearing for the petitioners, has challenged the impugned order on the following two grounds :

(a) The officer who has investigated into the case has not been empowered to investigate it under the statute.

(b) The Special Court lacks jurisdiction to take cognizance in respect of an offence punishable under Sections 3 of the Act.

So far as the second point is concerned the learned counsel for petitioners has relied upon the decision of the apex Court reported in (2000) 18 OCR (SC) 364: Gangula Ashok and another v. State of A.P. In paragraph 16 of the said judgment the apex Court has held that a Special Court under the 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 Cr.P.C. In other words, a complaint or a charge-sheet cannot straightaway be laid before the Special Court under the Act. This Court has followed the said decision in some other cases and order taking cognizance passed by the Special Court has been quashed. Considering the said submission and the decision rendered by the apex Court, the impugned order is liable to be quashed on the ground that the Special Court had no jurisdiction to take cognizance of the offence under Sections 3 of the Act.

So far as the first question is concerned, the learned counsel has drawn the attention of the Court to Sections 9 and 23 of the Act as well as Rule 7 of the Rules made thereunder. The relevant provisions as mentioned above are quoted below:

Section 9:

"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 and for copying 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 an 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, 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 against 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)."

Section 23:

"23. Power to make rules - (1) The Central Government may, by notification in the Official Gazette, make rules for carrying our the purpose of this Act.

(2) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule."

Rule 7 :

"7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy 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 Special 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."

Under Sections 9 of the Act for the purpose of investigation the State Government in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government, the powers not only for investigation but also for arrest and prosecution under the Act. Section 23 empowers the Central Government to frame Rules to carry out the purposes of the Act. Rule 7 prescribes that 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 cases and investigate it along with right lines within the shortest possible time. On the basis of the said provisions, the learned counsel for petitioners submits that in the present case, the investigation having not been done by an officer in the rank of Deputy Superintendent of Police, the entire proceeding is vitiated. He has referred to several decisions in respect of other Special Statutes where this Court has held that investigation made by any officer below the rank of the officer empowered under the statute is null and void and such investigation is liable to be quashed. So far as the present Act is concerned the learned counsel has referred to two decisions reported in 1999 (2) Crimes 343: D. Ramalinga Reddy v. State of A.P., : and 1999 (3) Crimes 582: Pentakota Koteswara Rao v. State of A.P. In the former decision the High Court of Andhra Pradesh has held that the investigation under the Act for the purpose of the offence under Sections 3 of the Act has to be done by an officer not below the rank of Deputy Superintendent of Police and such officer should be specifically appointed by the State Government. In the said case, the investigation had been done by a Sub-Inspector of Police who was not empowered to do so. Therefore, the Court held that the trial was vitiated and the order of conviction was set aside. In the decision reported in 1999 (3) Crimes 582 (Supra), a similar view has been taken by the same High Court. So far as the facts of the present case are concerned, it appears from the impugned order that after investigation, a final report was submitted by the Investigating Officer declaring the case a mistake of fact. It appears that a complaint was lodged and inquiry under Sections 202, Cr.P.C. was taken up. In the said inquiry, five witnesses were examined including the complainant. On the basis of the initial deposition of the complainant and other witnesses, the Special Court was satisfied that a prima facie case had been made out in respect of the offences alleged and accordingly took cognizance. Therefore, in my view, the contention of the learned counsel for petitioner that the investigation was done by an officer below the rank of Deputy Superintendent of Police has no application to the present case.

I, therefore, following the decision of the apex Court, hold that the Special Judge had no jurisdiction to take cognizance and therefore, should have returned the record to the concerned Magistrate. The order dated 9.2.2000 is quashed and the Special Judge, Bhadrak, is directed to send the records in G.R.Case No. 131 of 1999 to the concerned Court which shall deal with the matter in accordance with law.

Criminal Misc. Case is accordingly disposed of.