Virendra Kumar Bind and Others vs State of U.P. and Another

Amar Saran, J.—This writ petition has been filed against an order dated 9.9.2009, passed by the Additional Sessions Judge, Bhadohi, Gyanpur, Court No. 2, in S.T. No. 102 of 2007, whereby the learned Sessions Judge refused to discharge the revisionists in a case under Sections 323, 325, 504 and 506, I.P.C. and Section 3(1)(x) of S.C./S.T. Act and refused to admit evidence in defence for showing that the Petitioners, "who were beldar", belonged to the Scheduled Castes.

It is observed in the impugned order that the Petitioners could raise that plea in defence at the appropriate stage and it could not be raised at the stage prior to the framing of the charge. It is also pointed out that so far as the question whether the beldar caste was a Scheduled Caste or not, the matter was under consideration in the High Court and this question could not be decided at the instant stage. However, a new plea has been raised by the Petitioners before this Court that investigation was carried out by a Sub-Inspector of Police of P.S. Gopiganj and in view of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 no Investigating Officer, who was a police officer below the rank of a Deputy S.P., could investigate offences under the S.C./S.T. Act. It was pointed out that in another Criminal Misc. Writ Petition No. 2092 of 2008, Kade Deen and Ors. v. State of U.P. and Ors. in S.T. No. 116 of 2008, pending before the Additional District Judge Court No. 1, Bhadohi the charge-sheet was challenged on the ground that investigation has been conducted by Sub-Inspector of Police. According to this Court, an interim order passed on 5.2.2008, it was held that he had no jurisdiction to investigate the matter and the charge-sheet stood vitiated in view of Rule 7 of the aforementioned Rules. Reliance was placed in that case on the decision in Mohan Chaudhary v. State (XLI)2000 ACC 67. It may be mentioned that Mohan Chaudhary''s case (supra) was a case of a single Judge of Patna High Court where it was observed that Rule 7 required that only a Dy. S.P. specifically appointed to investigate such cases by the State Government, may investigate the same and as in that case a Dy. S.P., who was not specially empowered by the State Government, had investigated the case. The investigation of the S.C./S.T. Act offences was held to be bad in law. But so far as the other offences under Indian Penal Code were concerned, the cognizance with respect to those offences were not set aside.

In the present case also I find that apart from S.C./S.T. Act offences, the Petitioners have also been implicated in offences under Sections 323, 325, 504 and 506, I.P.C. Moreover, I am of the view that the stay order in Criminal Writ Petition No. 2092 of 2008, Kade Deen and Ors. v. State of U.P. and Anr. dated 5.2.2008 and the decision of the single Judge in Mohan Chaudhary''s case (supra) is per incuriam, as the Apex Court in the case of Satvinder Kaur Vs. State (Govt. of N.C.T. of Delhi) and Another, has held that only on account of absence of jurisdiction of a police officer (it was the territorial jurisdiction to investigate the case in that case), the investigation could not be quashed even in an application u/s 482, Code of Criminal Procedure Similarly, in Union of India (UOI) Vs. Prakash P. Hinduja and Another, paragraph 20 : 2003 (3) ACR 2001 (SC) and H.N. Rishbud and Inder Singh Vs. The State of Delhi, was approved, wherein the investigation of a case under the Prevention of Corruption Act, 1947 by a police officer below the rank of Dy. Superintendent of Police contrary to the provisions of Section 5A of the Prevention of Corruption Act, 1947 was held to afford no ground to the Special Judge to quash the proceedings because the investigation had been conducted by a police officer, who was not authorised. It was held that only when miscarriage of justice has resulted as a result of the investigation being conducted by the wrong agency, can the charge-sheet be quashed on that ground. In Section 156(2) of the Code of Criminal Procedure, it has specifically been provided that no proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate.

In this view of the matter, I find no good ground to quash the impugned order passed by the Additional District and Sessions Judge, Bhadohi, Gyanpur, Court No. 2, on 9.9.2009 and the writ petition is devoid of force and it is dismissed.