Bombay High Court
Jesamal S/O Arjundas Motwani vs The State Of Maharashtra on 9 September, 2008
Author: K.J. Rohee
Bench: K.J. Rohee, A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.449 OF 2008
1. Jesamal s/o Arjundas Motwani,
aged about 50 years.
2. Harish s/o Jesamal Motwani,
aged about 31 years.
Both resident of Desaiganj,
Tahsil - Desaiganj,
District - Gadchiroli. .. Petitioners
.. Versus ..
1. The State of Maharashtra, through
P. S. O. Desaiganj,
District - Gadchiroli.
2. Superintendent of Police,
Gadchiroli.
3. Director, National Commission for
Scheduled Castes, State Office
(Maharashtra & Goa),
Government of India,
Kendriya Sadan, "A" Wing,
1st Floor, Opp. Akurdi Railway Station,
Nigdi Pradhikaran,
Pune. .. Respondents
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2
Dinkar Murari Ramteke,
Aged Major, Occupation - Service,
R/o. Hanuman Ward,
Wadsa (Desaiganj),
District - Gadchiroli. .. Intervener
..........
Shri R.M. Daga, Advocate with Shri M.P. Khajanchi,
Advocate for the petitioners,
Shri S.S. Doifode, APP for respondent nos.1 and 2,
None appears for respondent no.3 though served,
Shri A.Y. Kapgate, Advocate for the applicant /
intervener.
..........
CORAM : K.J. ROHEE & A.P. BHANGALE, JJ.
DATE OF RESERVING THE JUDGMENT : SEPETMBER 5, 2008
DATE OF PRONOUNCING THE JUDGMENT : SEPTEMBER 9, 2008
JUDGMENT :(PER : K.J. ROHEE, J.)
1. Rule. Returnable forthwith. Heard finally by consent of parties.
2. By this petition under Article 226 of the Constitution of India, the petitioners inter alia seek to quash communication dated 11.4.2008 (Annexure P-4 ::: Downloaded on - 09/06/2013 13:50:10 ::: 3 to the petition) issued by the Director, National Commission for Scheduled Castes, State Office (Maharashtra and Goa), Pune (R-3) to the Superintendent of Police, Gadchiroli (R-2) to re-investigate and to invoke the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the event of prima facie case against the petitioners.
3. Petitioner no.1 is the President of Municipal Council, Desaiganj (District - Gadchiroli) and petitioner no.2 is his son. They hold semi wholesale dealer's licence in Desaiganj Taluka. There is another semi wholesale dealer for Desaiganj Taluka. As per the rules equal quota of kerosene is required to be distributed to both the licence holders.
4. Shri Dinkar s/o Murari Ramteke (hereinafter referred to as the "Complainant") is working as Senior Clerk in Tahsil Office, Desaiganj. He deals with Food Section. He belongs to Scheduled Caste (which caste is ::: Downloaded on - 09/06/2013 13:50:10 ::: 4 nowhere mentioned by him). According to him, the petitioners used to pressurize him for releasing more quota of kerosene. However, the complainant did not accede to their pressure. Petitioner no.1 is an influential person in the town and has a criminal record.
5. On 17.1.2007 around 2.00 PM the petitioners came to the Tahsil Office, Desaiganj. They hurled filthy abuses at the complainant. They threw the files from the table of the complainant and threatened him to implicate him in some matter. At that time, Naib Tahsildar Shri Kurve and the entire staff in Tahsil Office was present. On hearing the commotion Tahsildar Shri Londhe called them to his chamber. When they went to the chamber of the Tahsildar, the petitioners continued to abuse and threaten the complainant.
According to the complainant, the petitioners were knowing that the complainant belongs to Scheduled Caste and hence even in the past they quarrelled with ::: Downloaded on - 09/06/2013 13:50:10 ::: 5 him. He apprehends that the petitioners would involve him in any false case.
6. On 19.1.2007 the complainant made an application to the Tahsildar, Desaiganj requesting for relieving him from Food Section and entrusting any other section to him (there is no reference of the incident dated 17.1.2007 in the said application).
7. On 20.1.2007 ig the complainant moved Maharashtra State Revenue Employees Union disclosing the incident dated 17.1.2007 for the first time. Accordingly the Union requested Tahsildar, Desaiganj to take action against the petitioners.
8. On 22.1.2007 the complainant lodged written report about the incident dated 17.1.2007 to Police Station, Desaiganj. On the basis of the said report Crime No. 8/2007 under Sections 353, 294, 186 r/w 34 of the Indian Penal Code was registered against the petitioners at Police Station, Desaiganj. The complainant forwarded the copies of his report to the ::: Downloaded on - 09/06/2013 13:50:10 ::: 6 Chairman, National Commission for Scheduled Caste, New Delhi; Director, National Commission for Scheduled Caste, State Office (Maharashtra and Goa), Pune; Collector, Gadchiroli; Superintendent of Police Gadchiroli; Sub-Divisional Officer, Desaiganj; Sub-
Divisional Police Officer, Kurkheda camp at Desaiganj;
Tahsildar, Desaiganj and the President, Maharashtra State Revenue Employees Union, Branch Gadchiroli.
9. On 16.2.2007 the complainant moved the Chairman of National Commission, New Delhi and the Director, State Office, Pune. By communication dated 5.3.2007 the Director of State Office, Pune called for the report of Superintendent of Police, Gadchiroli. On 5.4.2007 Superintendent of Police, Gadchiroli submitted his report to the Director, State Office, Pune informing him that cognizance of the report lodged by the complainant was immediately taken. However, as the report did not disclose any offence punishable under the Scheduled Castes and the Scheduled Tribes ::: Downloaded on - 09/06/2013 13:50:10 ::: 7 (Prevention of Atrocities) Act, 1989 crime was registered only under various sections of the Indian Penal Code. During investigation, statements of 16 persons including the staff members who were present at the time of the alleged incident were recorded. The investigation revealed that there was verbal exchange of hot words between the complainant and the petitioners about the quantity of kerosene quota.
However the petitioners neither hurled obscene abuses nor abused on caste nor assaulted the complainant.
Superintendent of Police, Gadchiroli also informed that investigation was still going on.
10. On 18.5.2007 Police Inspector of Police Station, Desaiganj (R-1) submitted B Summary No. 1/ 2007 before JMFC, Desaiganj.
11. It seems that the complainant again moved the Director, State Office, Pune and by communication dated 11.4.2008 the Director, State Office, Pune expressed apprehension about the mode and method of ::: Downloaded on - 09/06/2013 13:50:10 ::: 8 investigation done. The Director, State Office, Pune requested Superintendent of Police, Gadchiroli to send the copies of statements of all the concerned eye-
witnesses to the Commission, to re-look into the entire issue and re-investigate the matter and adviced that in the event of prima facie case, the provisions of the SC & ST (Prevention of Atrocities) Act, 1989 be invoked. In pursuance of the said communication, Police Inspector Desaiganj moved an application before JMFC, Desaiganj on 26.6.2008 praying for return of the papers. The learned Magistrate allowed the prayer.
The petitioners have challenged the communication of R-3 dated 11.4.2008.
12. R-1 (PSO, Desaiganj) and R-2 (SP, Gadchiroli) filed affidavit-in-reply. They submitted that the petitioners have criminal background and several offences have been registered against them at PS Desaiganj. They further submitted that R-3 (State Office of the National Commission) has the power to ::: Downloaded on - 09/06/2013 13:50:10 ::: 9 direct SP Gadchiroli and it has rightly issued the communication dated 11.4.2008, in pursuance of which an application was moved before JMFC, Desaiganj for return of papers, who allowed it on 26.6.2008 which impliedly permitted further investigation in the matter.
Respondent Nos.1 and 2, therefore, submitted that the petition is liable to be dismissed.
13. Respondent no.3 (Director, State Office, Pune) did not appear despite notice.
14. We have heard Shri R.M. Daga, Advocate with Shri M.P. Khajanchi, Advocate for the petitioners;
Shri S.S. Doifode, APP for respondent nos.1 and 2/State and Shri A.Y. Kapgate, Advocate for the complainant who was permitted to intervene.
15. It was vehemently submitted by the learned counsel for the petitioners that R-3/State Office of the National Commission has no power and jurisdiction to direct reinvestigation of the matter. The learned counsel for the petitioners fairly admitted that Sub-
::: Downloaded on - 09/06/2013 13:50:10 ::: 10Section 8 of Section 173 of the Cr.P.C. gives right to further investigation. However, they urged that Sub-
Section 8 of Section 173 of the Cr.P.C. does not give right to fresh investigation or reinvestigation. Sub-
Section 8 of Section 173 of the Cr.P.C. Provides that :
"Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports reading such evidence in the form prescribed."
16. In support of this submission the learned counsel for the petitioners relied on the following cases :
(i) K. Chandrasekhar .vrs. State of Kerala and others, (1998) 5 SCC 223, wherein it is held :
"From Section 173 Cr.P.C. it is evident that even after submission of police report under ::: Downloaded on - 09/06/2013 13:50:10 ::: 11 sub-section (2) on completion of investigation, the police has a right of "further" investigation under sub-section (8) but not "fresh investigation" or "reinvestigation". The dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental". "Further"
investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. This conclusion is supported also by the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports - and not fresh report or reports - regarding the "further" evidence obtained during such investigation."
(ii) The said case was followed in State of Andhra Pradesh .vrs. A.S. Peter, (2008) 2 SCC 383, in which it was observed as under :
"Indisputably, the law does not mandate taking of prior permission from the ::: Downloaded on - 09/06/2013 13:50:10 ::: 12 Magistrate for further investigation. Carrying out of a further investigation even after filing of the charge-sheet is a statutory right of the police. A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not."
(iii) K. Chandrasekhar was also followed in Ramachandran .vrs. R. Udhayakumar and others, (2008) 5 SCC 413, in which it was held :
"Instead of fresh investigation there can be further investigation if required under Section 173(8), Cr.P.C.
At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the Police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation.
In view of the position of law as indicated ::: Downloaded on - 09/06/2013 13:50:10 ::: 13 above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173(8) of the Code."
17. It was contended by Shri Kapgate, the learned counsel for the intervener, that the observations of the Apex Court in State of Andhra Pradesh .vrs. A.S. Peter, (2008) 2 SCC 383, to the effect that reinvestigation without prior permission is necessarily forbidden indicate that reinvestigation is not totally prohibited and it can be undertaken with prior permission of the Court. In our view, it is difficult to accept this submission because in the subsequent case namely Ramachandran .vrs. R. Udhayakumar and others, (2008) 5 SCC 413, the Apex Court struck down the direction of the High Court for reinvestigation or fresh investigation which clearly shows that in any case reinvestigation is not ::: Downloaded on - 09/06/2013 13:50:10 ::: 14 permissible. If that is so, then R-3 is not empowered to direct R-2 to reinvestigate the matter. Consequently, the communication dated 11.4.2008 in so far as it directs reinvestigation of the matter deserves to be quashed and set aside.
18. It was further urged by Shri Kapgate, the learned counsel for the intervener that State Office of the National Commission has the authority and jurisdiction to direct reinvestigation. In this respect he invited our attention to Article 338 (5) of the Constitution of India. It would be proper to refer to the said provision. Article 338 (5) provides that it shall be the duty of the Commission :-
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;::: Downloaded on - 09/06/2013 13:50:10 ::: 15
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;
(c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by the rule specify.::: Downloaded on - 09/06/2013 13:50:10 ::: 16
19. According to Shri Kapgate, Article 338 (5)
(a) & (b) of the Constitution of India, are in fact, the powers of the Commission to monitor all matters relating to the safeguards provided for the Scheduled Castes under any law and to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes. According to him it was perfectly within the powers of the State Office of the National Commission to issue communication dated 11.4.2008 directing Superintendent of Police, Gadchiroli to reinvestigate the matter.
20. The fallacy of the submission made on behalf of the complainant can be seen from the judgment of the Apex Court in All India Indian Overseas Bank SC and ST Employees' Welfare Association and others .vrs. Union of India others (1996) 6 SCC 606, in which the direction of the National Commission to the Executive Director of Indian Overseas Bank to stop the ::: Downloaded on - 09/06/2013 13:50:10 ::: 17 promotion process pending further investigation and final verdict in the matter was held to be bad for want of jurisdiction. The Apex Court observed that the Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order impugned. In this respect the Apex Court observed that the powers of a Civil Court in granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution. The above observations of the Apex Court are also relevant and applicable to the present case where it has not been shown that the Commission has been specifically granted any power to direct the State Police Officers to reinvestigate any matter. We are satisfied that the State Office of the National Commission has exercised jurisdiction not vested in it by law. As such, in our view, the State Office of the National Commission lacks the authority ::: Downloaded on - 09/06/2013 13:50:10 ::: 18 of issuing communication dated 11.4.2008 and, therefore, the same is held bad for want of jurisdiction.
21. It was lastly pointed out by Shri Kapgate that after receipt of the communication dated 11.4.2008 by Superintendent of Police, Gadchiroli for reinvestigation, an application was moved before JMFC, Desaiganj on 26.6.2008 for return of the papers and it was allowed by JMFC, Desaiganj. ig Thus in the present case reinvestigation has been allowed by JMFC, Desaiganj and as such the communication dated 11.4.2008 has already been acted upon and it cannot be quashed.
22. We are unable to find any force in this submission. It is true that on 26.6.2008 PI Desaiganj moved an application before JMFC, Desaiganj by referring to the direction of State Office of the National Commission for reinvestigation and prayed for return of the papers. The order passed by the Magistrate shows that the prayer for return of papers was allowed. The application does not contain any prayer for permission ::: Downloaded on - 09/06/2013 13:50:10 ::: 19 to reinvestigate the crime, nor the order by Magistrate indicates that he allowed reinvestigation into the crime.
As such it cannot be said that the communication dated 11.4.2008 has been acted upon and that it cannot be quashed.
23. In the result we find that the communication dated 11.4.2008 deserves to be quashed and set aside.
We, therefore, pass the following order :
ORDER
(i) The petition is partly allowed. The communication dated 11.4.2008 issued by R-3 (State Office of the National Commission) to the extent it directs R-2 (Superintendent of Police, Gadchiroli) to relook into the entire issue by reinvestigating the matter is hereby quashed.
(ii) Rule is made absolute in above terms.
(A.P. BHANGALE) (K.J. ROHEE)
JUDGE JUDGE
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