Jharkhand High Court
Manoj Kumar Giri vs State Of Jharkhand And Anr. on 24 June, 2003
Equivalent citations: 2004CRILJ3434, 2004 CRI. L. J. 3434, 2004 AIR - JHAR. H. C. R. 1933, (2003) 3 EASTCRIC 503, (2003) 4 CRIMES 495
Author: Lakshman Uraon
Bench: Lakshman Uraon
ORDER Lakshman Uraon, J.
1. Petitioner Manoj Kumar Giri has preferred this criminal revision against the order dated 25-3-2003 passed by the 1st Additional Sessions Judge-cum-Special Judge (SC/St), Hazaribagh in T. R. No. 90 of 2003 arising out of Sadar PS case No. 77 of 2002 (G. R. No. 476 of 2002), whereby and whereunder the prayer for discharge of the petitioner was rejected. Subsequently in course of pending disposal of this criminal revision, charges were framed against the petitioner under Sections 341, 323, 448, 354, IPC and also under Section 3(1)(x) and 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act on 1-5-2003 which was also challenged that the said order of framing charges be quashed.
2. Informant Dr. Sandhya Topno alleged that on 22-2-2002 at about 10.00 a.m., petitioner Manoj Kumar Giri, who runs a medicine shop in the Sandwell Nursing Home where the informant is engaged, entered into her chamber, caught hold of her neck, pushed her with an intention to kill her. When the informant tried to rescue herself, this petitioner misbehaved with her and took away Rs. 3500/- from her bag. On the earlier occasions also, the petitioner had threatened the informant and had demanded money claiming himself to be the owner of the Nursing Home. On the day of alleged occurrence, petitioner wanted a false medical certificate from her, which was refused by her resulting the alleged occurrence.
3. Assailing the order rejecting to discharge this petitioner, the learned counsel for the petitioner submitted that S.I. of Police investigated the case, but the charge-sheet was submitted by Dy. S. P. among other Sections of the I.P.C. under Section 3(1)(x) and 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act and accordingly the cognizance was taken. It was submitted that when the Special Judge came to know that investigation was not done by a proper investigating officer of the rank of Dy. S. P. then by order dated 8-8-2002 he remitted back the case to the C.J.M. for re-investigation. Thereafter re-investigation was done by the same Dy. S. P. who had supervised the earlier investigation done by the S.I. of police again submitted charge-sheet under Sections 341, 323, 448, 354, IPC and 3(1)(x), 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act.
4. It was submitted that investigation of the case was not done properly, Dy. S. P. had done the table work without any proper investigation. The Dy. S. P. was not competent person to investigate the case under Rule 7 of the SC/ST (Prevention of Atrocities) Rules. Under Rule 7(2) the I.O. shall submit his report to the S. P. who will immediately forward the report to the Director General of Police of the State Government. In the present case, this procedure has not been followed. The Dy. S. P. who investigated the case on the order of the Court, was not notified in the official Gazette by the Government to investigate the case and as such investigation and charge-sheet is against the provision of law. Hence, no charge can be framed on the basis of such investigation.
5. Lastly it was submitted that the informant has alleged regarding commission of theft and pressing of her neck with an intention to cause her murder hence prayed to add Sections 379 and 307, IPC also. But charge-sheet was not submitted under those sections which shows the falsehood of the allegation made by the informant against the petitioner.
6. Learned counsel appearing on behalf of the informant has submitted that in a criminal procedure, there is no provision of amendment of the petition. It was submitted that the informant and the witnesses, who were examined in course of investigation, namely, Baijnath Prasad and Suchita Bara, staffs of the Nursing Home, have supported the prosecution case to frame the charges against these petitioners under Sections 341, 323, 448, 354, 379 and 307, IPC along with Sections 3(1)(x) and 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act.
7. The learned 1st Additional Sessions Judge-cum-special Judge, Hazaribagh found that as per order of the Court, the investigation has been conducted by Dy. S. P. as required under Rule 7 of the SC/ST (Prevention of Atrocities) Act.
8. The learned counsel for the petitioner has submitted that Section 9 of the SC/ST (Prevention of Atrocities) Act, 1989 provides, 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 so,--
(a) for the prevention of coping with any offence under this act, or
(b) for any case of class of 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 particulars, the powers of arrest, investigation and prosecution of persons before any Special Court.
(2) All officers of pplice 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).
Further, Rule 7 of the SC/ST (Prevention of Atrocities) Rules, 1995 provides that, 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 post experience sense of ability and justice to perceive the implications of the case and investigate it 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.
9. In this present case, there is no denial that first the Section 9 of Police investigated the case which was supervised by the Dy. S. P. and charge-sheet was submitted. When the Court below found that the investigation was not done properly by competent Dy. S. P., legally authorized to investigate the offence, then he remitted back the case for further investigation. Again by the order of the Court, investigation was done by Dy. S. P. and charge-sheet was submitted. In this present case, investigation conducted by the Dy. S. P. who was legally authorized by the State Government to investigate the offence punishable under SC/ST (Prevention of Atrocities) Act, is vitiated in law. The investigation and conferment of power is not in accordance with the law. Hence, submission of charge-sheet under Sections 3(1)(x) and 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act ultra vires the provision contained under Section 9 of the Act and Rule 7 of the SC/ST (Prevention of Atrocities) Rules, 1995. In view of this legal lacuna in this present case, the investigation done by a Dy. S. P. which was not notified in the official gazette by the State Government conferring power to investigate the case and due to non-compliance of Rule 7 of SC/ST (Prevention of Atrocities) Rules, 1995, the investigation done in this case and the charge-sheet submitted under the said Act is illegal which is quashed. So far the other Sections of the I.P.C. under which charge-sheet has been submitted, the learned 1st Additional Sessions Judge-cum-Special Judge, Hazaribagh has considered the case diary and has found the prosecution case regarding assault after entering into the chamber of the informant Dr. Sandhya Topno, outraging her modesty, was supported in the case diary by witnesses Shekhar Nelson Bara, Md. Rashid, Sarswati Devi, Jubeda Khatoon in respect of catching hold of the informant in course of their statement under Section 161, Cr.P.C. The learned Court-below found a prima facie case under Sections 341, 323, 448 and 324, IPC also to proceed with the case as he found sufficient material to frame charges against them and accordingly, charges have also been framed under, those sections. I do not find any irregularity in the above finding of the learned Court-below to frame charges under the Sections of the I.P.C. as a prima facie case is made out against these petitioners.
10. In view of above considered facts, I find that the investigation and submission of charge-sheet under the SC/ST (Prevention of Atrocities) Act was not legally done which ultra vires of the provisions contained in the said Act which is accordingly quashed. On the other hand, there is sufficient material to proceed with the trial under Sections 341, 323, 354 of the IPC under which sections, the learned Court below has framed charges cannot be interfered in view of the facts, circumstances and evidence available at this stage.
11. In the result, this criminal revision is partly allowed to the extent mentioned above.