Jharkhand High Court
Ambrish Alias Amrish Mahto vs The State Of Jharkhand And Anr on 13 October, 2015
Author: H. C. Mishra
Bench: H. C. Mishra
1
CRIMINAL MISCELLANEOUS PETITION NO. 2270 OF 2013
with
I. A. No. 6524 of 2014
(In the matter of an application under Section 482 of the Code of Criminal
Procedure, 1973).
-----
Ambrish @ Amrish Mahto ..... ... Petitioner
Versus
1. The State of Jharkhand
2. Mangal Tuddu ..... ... Opposite parties
-------
For the Petitioner : Mr. Kailash Prasad Deo, Advocate
For the State : Mr. Pankaj Kumar, A.P.P.
For the O.P. No. 2 : Mr. A.K. Kashyap, Sr. Advocate
------
C.A.V. on 30. 9. 2015 Pronounced on 13.10 .2015.
----
H.C. Mishra, J:- Heard learned counsel for the petitioner, learned counsel for the
State as also learned counsel for the complainant O.P. No. 2.
2. The petitioner is aggrieved by the order dated 2.7.2013 passed by
the learned Sub-Divisional Judicial Magistrate, Deoghar, in P.C.R. Case No. 265
of 2010, whereby prima facie offence under Sections 147, 148, 341, 323, 379,
385 and 504 of the Indian Penal Code and Section 3(1)(x) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to
as the 'SC/ST (POA) Act') has been found against the petitioner. The petitioner
has also prayed for quashing the entire criminal proceeding against him in the
said complaint case.
3. The facts of this case lie in a short compass. The complainant O.P.
No. 2 has filed the complaint case in the Court of the Chief Judicial Magistrate,
Deoghar, wherein it is alleged that the petitioner used to torture the complainant
for giving him the piece of land in Plot No. 252, situated at Jasidih. It is alleged
that on the date and time of alleged occurrence, when the complainant was going
to Jasisih Bazar, the petitioner along with other co-accused persons forming
unlawful assembly and variously armed, had trespassed upon the land and they
were digging the earth. Upon objection by the complainant, the petitioner abused
2
the complainant in filthy languages taking the name of his caste and the accused
persons, including this petitioner, assaulted the complainant and it is alleged that
the petitioner took away Rs. 1,000/- from the pocket of the complainant and also
demanded levy of Rs. 50,000/-. The complainant gave the information about the
occurrence at the police station, but no action was taken and thereafter he also
met to the S.D.P.O. and Superintendent of Police, Deoghar, but they also did not
take any action upon it. With these allegations the complaint case was filed,
which was registered as P.C.R. Case No. 265 of 2010.
4. It appears that the matter was inquired into by the Court below, in
which, complaint examined five witnesses and on the basis of evidence brought
on record at the enquiry stage, the Court below, though found that there was land
dispute between the parties, but also found the prima facie offence under
Sections 147, 148, 341, 323, 379, 447, 385 and 504 of the Indian Penal Code
against the accused persons, by order dated 31.1.2011, passed by the learned
Sub-Divisional Judicial Magistrate, Deoghar. The complainant, aggrieved by the
fact that no prima facie offence under the SC/ST (POA) Act had been found
against the accused persons, filed revision before the learned Sessions Judge,
Deoghar, which was registered as Cr. Revision No. 21 of 2011 and by order dated
19.1.2013, passed by the learned 1st Additional Sessions Judge, Deoghar, the said revision application was allowed and the order, passed by the learned Sub-Divisional Judicial Magistrate, Deoghar, was set aside and the learned Court below was directed to pass the order afresh judiciously. Thereafter by the impugned order dated 2.7.2013, learned Sub-Divisional Judicial Magistrate, Deoghar also found prima facie offence under Section 3(1)(x) of the SC/ST (POA) Act also, apart from the aforementioned offences under the Indian Penal code, and the process was ordered to be issued against the accused persons. Being aggrieved and dissatisfied with the said order, the present criminal miscellaneous petition has been filed by the petitioner.
3
5. Learned counsel for the petitioner has submitted that the impugned order, passed by the Court below is absolutely illegal, inasmuch as, it is apparent from the impugned order that there was a land dispute between the parties, for which, the petitioner and the other co-accused persons have been falsely and maliciously implicated in this case. Learned counsel for the petitioner has raised a point of law submitting that Section 20 of the SC/ST (POA) Act mandates that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It is further submitted that Section 23 of the said Act empowers the Central Government to make Rules for carrying out the purposes of this Act and accordingly, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, (hereinafter referred to as the 'SC/ST (POA) Rules') has been framed by the Central Government, wherein Rule-7 provides that an offence committed under the aforesaid Act shall be investigated by the police officer not below the rank of Deputy Superintendent of Police. Such 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 case and investigate it along with right lines within a shortest possible time. It is submitted by learned counsel for the petitioner that since there is special provision under the SC/ST (POA) Rules for investigation of the case by the police officer not below the rank of Deputy Superintendent of Police, the general provisions of Cr.P.C., shall not be applicable in the case in view of the overriding provision as contained in Section 20 of the SC/ST (POA) Act. It is accordingly, submitted that the general provisions with regard to the inquiry of the complaint case by the Magistrate shall not be applicable in the case and upon filing of the complaint for the offences under the provisions of SC/ST (POA) Act, the Magistrate has no other option, but to send the case for investigation by the police in accordance with Rule-7 of the SC/ST (POA) Rules.
4
6. In support of his contention, learned counsel for the petitioner has placed reliance upon the decision of the Hon'ble Supreme Court of India in State of M.P. Vs. Chunnilal @ Chunni Singh, reported in 2009 AIR SCW 5335, wherein the law has been laid down as follows:-
"6. ------------- . The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when conjointly read lead to an irresistible conclusion that investigation to an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid.
------------- ."
It may, however, be pointed out at this place itself that the said case was instituted on the basis of the police case and the question involved in the present case was not under consideration in the said case before the Apex Court and there is nothing in this decision to show that the Magistrate, upon filing of the complaint, cannot enter into an inquiry as provided under Chapter XV of the Cr.P.C.
7. Learned counsel has also referred to the principles of interpretation of statutes and pointed out from the book authored by Justice G.P. Singh titled as "Principles of Statutory Interpretation", wherein in Chapter-12 dealing with delegated legislation, the principle is explained in the following words:-
"6. RULES AND THE ENABLING ACT AS AID TO EACH OTHER'S CONTRUCTION Rules made under the statute are treated for the purpose of construction as if they were in the enabling Act and are to be of the same effect as if contained in Act. Reference to 'any other law' in any provision in the Act will therefore not cover the rules made under the Act. Interpretative notes appended to the Rules by the Rule making authority are part of the rules and hence statutory. It is a recognized canon of construction that an expression used in a rule, bye-law or form made in exercise of a power conferred by a statute must unless there is anything repugnant in the subject or context have the same meaning as is assigned to it under the statute. But the rules are to be consistent with the provisions of the Act, and if a rule goes beyond what the Act contemplates, the rule must yield to the Act. But a general provision in the Act cannot apply to special provisions made by valid rules under the Act." (Emphasis supplied).5
8. Learned counsel has accordingly, submitted that in view of the special provision prescribed under the SC/ST (POA) Act and the Rules framed thereunder, the general provisions with respect to inquiry by the Magistrate as provided under Chapter XV of the Cr.P.C., shall not be at all permissible and accordingly, the impugned order cannot be sustained in the eyes of law.
9. Learned counsel for the State as also learned counsel for the O.P. No. 2 have opposed the prayer and it is submitted by learned counsel for the O.P. No. 2 that there is no provision either in the SC/ST (POA) Act or in the Rules framed there under, preventing the Magistrate to make an enquiry under Chapter XV of the Cr.P.C., upon a complaint filed before him, and this is the established practice prevailing in the Country that when a complaint is filed under the provisions of SC/ST (POA) Act, the Magistrate is fully competent under the Cr.P.C., either to send the case for investigation by the police under the provisions of Section 156 (3) of the Cr.P.C., or to enter into an inquiry himself as provided under Chapter-XV of the Cr.P.C. Learned counsel has accordingly, submitted that in view of the provisions of Section 20 of the SC/ST (POA) Act, only those provisions of the Cr.P.C., which are inconsistent with the said Act shall not apply, but those provisions, which are not inconsistent with the Act are always applicable and have to be followed. Learned counsel accordingly, submitted that there is no illegality in the impugned order passed by the Court below.
10. In support of his contention, learned counsel for the O.P. No. 2 has submitted that there are number of cases, in which following the same procedure, prima facie offences are being found by the Magistrate for the offence under SC/ST (POA) Act, and this procedure has been upheld up-to to the Apex Court. By way of example, learned counsel has cited a decision of the Apex Court in Subrata Das Vs. State of Jharkhand and Anr., reported in AIR 2011 SC 177, wherein where the same procedure was adopted by the Magistrate, who had 6 found the prima facie offence under the SC/ST (POA) Act, by entering into the inquiry, and there was no interference by the Apex Court. Placing reliance upon this decision by way of example, learned counsel has submitted that there is no illegality in the impugned order, passed by the Court below.
11. It is further submitted by the learned counsel for the O.P. No.2, that though the case arises out of a land dispute between the parties, but there is specific allegation against the accused persons of assaulting the complainant and abusing him within the public view in filthy languages by taking the name of his caste, as also of committing the theft of cash and of demanding levy, and these allegations have been supported by the witnesses, examined at the stage of inquiry and accordingly, the offence is clearly made out against the accused persons, including this petitioner, and there can be no interference in the criminal proceeding against the petitioner at this stage.
12. Having heard learned counsels for both the sides and upon going through the record, I find that the petitioner is claiming the land in question without having any right or title upon it. In the complaint petition, it is alleged that the complainant was being forced to give the land in question to the petitioner. Though the petitioner has disputed the title and ownership of the complainant over the land in dispute, but the case of complainant is that he is one of the heirs is recorded tenant. There is specific allegation in the complaint petition of assaulting the complainant and abusing him in filthy languages taking the name of his caste and there is also allegation of committing theft of cash and demanding levy by the accused persons forming the unlawful assembly, and in the backdrop of these facts, earlier by order dated 31.1.2011 the Court below had found the prima facie offence against the petitioner and the other co-accused persons for the offence under the Indian Penal Code, which was never challenged by the petitioner. Rather, the opposite party No.2 had challenged the aforesaid order before the Revisional Court below being aggrieved by the fact that no 7 prima facie offence under the SC/ST (POA) Act had been found against the accused persons, in which the learned Revisional Court below, by order dated 19.1.2013 passed in Cr. Rev. No. 21 of 2011, set aside the aforesaid order passed by the learned Sub-Divisional Judicial Magistrate, Deoghar, directing him to pass the order judiciously, in compliance of which, the learned Sub-divisional Judicial Magistrate had passed the order afresh on 2.7.2013 finding the prima facie offence under Section 3(1)(x) of the SC/ST (POA) Act, apart from the offence under Sections 147, 148, 341, 323, 379, 385 and 504 of the Indian Penal Code, against the petitioner and the other co-accused persons, on the basis of the materials available on record.
13. The contention of learned counsel for the petitioner that in view of overriding effect to Section 20 of the SC/ST (POA) Act, the Magistrate was not authorized to enter into the inquiry as provided under Chapter-XV of the Cr.P.C., rather the Magistrate was duty bound to send the complaint for investigation by the police in the manner prescribed in Rule-7 of the SC/ST (POA) Rules, in my considered view shall not be the correct approach in law. Section 20 of the SC/ST (POA) Act reads as follows:-
20. Act to override other laws.- Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.
14. Thus a plain reading of this provision clearly shows that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Meaning thereby, the provisions in the Cr.P.C. or any other law, which are not inconsistent with the Act, shall very much apply even for the offences under the SC/ST (POA) Act. Rule 7 of the SC/ST (POA) Rules prescribes that an offence committed under the Act shall be investigated by the police officer not below the rank of Deputy 8 Superintendent of Police, who shall be appointed by the state Government / Director General of Police / Superintendent of Police after taking into account his past experience etc., but there is no provision either in the SC/ST (POA) Act or in the Rules framed there under, preventing any inquiry by the Magistrate as provided under Chapter-XV of the Cr.P.C., upon a complaint filed before the Magistrate.
15. In that view of the matter, I find force in submission of learned counsel for the complainant O.P. No. 2 that it is an usual practice in the complaint cases filed for the offences under the SC/ST (POA) Act, that the Magistrate either sends the cases for investigation before the Police under Section 156 (3) of the Cr.P.C., or enters into the inquiry as provided under Chapter XV of the Cr.P.C., and such inquiries have not been interfered with by the Apex Court.
16. In view of the aforementioned discussions, I do not find any illegality and / or irregularity in the impugned order dated 2.7.2013 passed by the learned Sub-Divisional Judicial Magistrate, Deoghar, in P.C.R. Case No. 265 of 2010, whereby prima facie offence under Sections 147, 148, 341, 323, 379, 385 and 504 of the Indian Penal Code as also Section 3(1)(x) of the SC/ST (POA) Act has been found against the accused persons, including the petitioner. There is no merit in this criminal miscellaneous petition and the same is accordingly, dismissed. The aforesaid interlocutory application also stands disposed of.
( H. C. Mishra, J.) Jharkhand High Court, Ranchi Dated the 13th of October, 2015.
N.A.F.R./ Amitesh/-