Madhya Pradesh High Court
Keshav Singh vs State Of M.P. on 21 September, 2006
Equivalent citations: 2007 CRI. L. J. 721, (2007) 49 ALLINDCAS 551 (MPG), (2007) 1 CRIMES 58, (2007) 4 EASTCRIC 50, 2007 (57) ACC (SOC) 32 (MP)
JUDGMENT A.P. Shrivastava, J.
1. This appeal has been preferred against the Judgment dated 11-1-2000 passed by the Special Judge, Vidisha, In Special Case No. 193/97, by which the learned Court convicted the appellant under Section 376(2)(g) of IPC and sentenced to undergo rigorous Imprisonment for ten years with a fine of Rs. 5,000/- and In default to undergo further simple Imprisonment for one year.
2. Apart from the merits of the case, counsel for the appellant also challenged this appeal on the ground that In this case the investigation has not been done by the rank of Deputy Superintendent of Police. Although this ground has not been taken in the memo of appeal but being a legal ground, he has raised this ground at the time of final arguments.
3. The background of the case, In short, is that the report of the incident was lodged by the prosecutrix on 28-5-97 at 10.30 a.m. at Police Station, Vidisha, that in the night, appellant along with co-accused Ghamandi came to the house of prosecutrix and knocked the door and asked for flour. She opened the door and then both the accused persons entered into the house of the prosecutrix. Co-accused Ghamandi caught hold her, pressed her mouth and the appellant Keshav committed sexual intercourse with her. After completion of the act, appellants ran away. Soon after the incident, on the cry of the prosecutrix, Narbadi Bai (PW-3), Kanchedi (PW-4) and Gumani (PW-5) came there and opened the door of the house of the prosecutrix then prosecutrix narrated the incident to them.
4. On the basis of written complaint Ex. P-2, first information report was lodged at Police Station which is Ex, P-6. Both prosecutrix and the appellant were sent for medical examination. The report of the appellarft-is Ex. P-l while the report of the prosecutrix is Ex. P-5. After investigation, the charge-sheet was filed against the appellant along with co-accused and the charges under Section 376(2)(g) of IPC and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were framed against the appellant while charges were framed against the co-accused Ghamandi under Section 376(2)(g) of IPC.
5. The trial Court acquitted the appellant under Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and convicted under Section 376(2)(g) of IPC.
6. Before coming to the merits, I would like to discuss the objection raised on behalf of the appellant that investigation, in this case, was not. done by the Deputy Superintendent of Police, therefore, the trial would vitiate and the appellant Is entitled for acquittal.
7. In exercise of the powers conferred by Sub-section (1) of Section 23 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter it shall be referred to as "the Act 1989"), the Central Govt, made the rules which are known as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 3.995 (hereinafter it shall be referred to as "the Rules 1995"). The Rules 1995 came into existence from 1-4-1995.
8. I would like to reproduce Rule 7 of the Rules 1995 which is as follows:
Investigating Officer-(1) an offence committed under the Act shall be investigated by a Police Officer not below the rank of 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 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 [Secretary to the'State Government, Director of Prosecution/the1 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. It is submitted on behalf of the appellant when competent officer had not investigated the matter or verified the investigation done by another and had laid charge-sheet, it did not amount to compliance of Rule 7 as such these proceedings were liable to be vitiated. In support of the above contention, the learned Counsel for the appellant cited series of citations which are as follows:
10. In State of Himachal Pradesh v. Baldev Bandari reported in 2006 (2) Crimes 77 In which it is laid down that the investigation of a case has to be undertaken by an officer not below the rank of Deputy Superintendent of Police. It Is no longer res-integra that Rule 7 is mandatory and violation of this Rule i.e. Investigation of a case involving offences under the Atrocities Act conducted by an officer below the rank of Deputy Superintendent of Police would vitiate the trial.
11. He also relied on a Judgment rendered in the case of Makkaji Ram Raj v. State of A.P. reported in 2005 (3) Crimes 699, Ranjit alias Raj at Kumar Das v. State of Orissa reported in 2003 (3) Crimes 476 and T. Hanmanthu v. State of A.P. reported in 2005 (1) Crimes 627 : 2004 Cri LJ 4087 (AP) and submitted that in these cases also almost similar view has been taken by the Courts regarding the non-compliance of Rule 7 and its effect on the trial. Counsel for the appellant also relied on the decision of this Court rendered in a case of Dhanraj Singh v. State of M.P. 2005 (3) MPLJ 332 : 2005 Cri LJ 3782 in which the Court held that in these cases Rule 7 of the Rules 1995 was not complied with and therefore conviction of appellants under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be sustained due to non-compliance of mandatory Rule 7.
12. Sub-inspector Badri Vishal Singh (P.W. 8) deposed that the case, handed over from the police along with the case diary of Crime No. 223/97 and on 30-5-1997 he along with Deputy Superintendent of Police went to Gram Nateran and prepared the spot map which is Ex. P-3. During investigation, recorded the statements of the witnesses. In para 4 of the cross-examination, she deposed that he has recorded the statements of the witness as per the directions given by the Deputy Superintendent of Police.
13. On behalf of the State, it submitted that in the present case, no conviction is given under the offence of Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant is convicted only under Section 376(2)(g) of IPC. Therefore, if Rule 7 is not complied with, it will not affect the merits of the case.
14. During the course of arguments, it has not been pointed that the same objection was take by the appellant before the Special Judge. Even in the memo of appeal, no such objection was raised by the appellant.
15. In cases of illegal Investigation, the question is not whether in Investigating an offence the police have disregarded the provisions of the Act, but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial. It is, therefore, necessary for the accused to throw a reasonable doubt that the prosecution evidence is such that It must have been manipulated or shaped by reason of the irregularity in the matter of investigation, or that he was prevented by reason of such irregularity from putting forward his defence or adducing evidence in support thereof.
16. I would like to quote Section 465 of the Code of Criminal Procedure which is as follows:
Section 465 : Finding or sentence when reversible by reason of error, omission or irregularity:
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
17. In Sub-section (2) of Section 465, it has clearly been laid down that in determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
18. Regarding Section 465 of Cr.P.C. and irregularity or illegality in the investigation, there are some decisions pronounced by the Apex Court which I have discussed in the preceding paras.
19. In the case of A.C. Sharma v. Delhi Administration it is held that any irregularity or even illegality committed in the course of investigation does not by itself affect the legality of the trial by an otherwise competent Court unless miscarriage of justice has been caused thereby. Similarly in the case of Sailendranath Bose v. The State of Bihar reported in AIR 1968 SC 1292 : 1968 Cri LJ 1484 also the same view is expressed by the Apex Court. The case was related to the Prevention of Corruption Act 1947. In the Act, it was necessary that investigation of an offence had to be conducted by the rank of D.S.P. In this regard, it is held that investigation by an officer below the rank of D.S.P., considering validity of the investigation, it is held that illegality of investigation does not vitiate the jurisdiction of Court for trial. Prejudice has to be shown. While considering the question of prejudice, the Apex Court considered the matter in the case of Willie (William) Slaney v. State of M.P. that question of prejudice is one of the facts and is to be considered by the Court in the facts and circumstances of the case before any benefit can be claimed by the accused.
20. In the case of K.C. Mathew v. State of Travancore-Cochin , the Apex Court has held that the omission to take the objection on the ground of prejudice in the grounds of appeal is not necessarily fatal; everything must depend on the facts of the case; but the fact that the objection was not taken at an earlier stage, If it could and should have been taken, is a material circumstance that will necessarily weigh heavily against the accused particularly when he has been represented by counsel throughout.
21. In the case of H.N. Rishbud v. State of Delhi , the Apex Court has held that in view of Section 465 of Cr.P.C. cognizance can be taken on an invalid police report. Illegality in investigation also does not prohibit taking of cognizance as no prejudice caused to accused. The Apex Court relied on a decision rendered in the case of Lumbhardar Zutshi v. The King reported in AIR 1950 (Privy Council) 26 : 1950 (51) Cri LJ 644.
22. It was held in State of M.P. v. Bhooraji in which the Apex Court has held that expression "Court of Competent Jurisdiction" denotes a validly constituted Court conferred with jurisdiction to try the offence. Competence would remain unaffected by non-compliance of procedural requirement and mere error, omission or irregularity can alone be cured under the provision of Section 465 of Cr.P.C. I would like to quote the relevant paras of the judgment from 12 to 22 which are as follows:
12. Section 465 of the Code falls within Chapter XXXV under the caption "Irregular Proceedings". The Chapter consists of seven sections starting with Section 460 containing a catalogue of irregularities which the legislature thought were not enough to axe down concluded proceedings in trials or enquiries. Section 461 of the Code contains another catalogue of irregularities which in the legislative perception would render the entire proceedings null and void. It is pertinent to point out that the former catalogue contains the instance of a Magistrate, who is not empowered to take cognizance of offence, taking cognizance erroneously and in good faith. The provision says that the proceedings adopted in such a case, though based on such erroneous order, "shall not be set aside merely on the ground of his not being so empowered.
13. It is useful to refer to Section 462 of the Code which says that even proceedings conducted in a wrong sessions division are not liable to be set at naught merely on that ground. However, an exception is provided in that section that if the Court is satisfied that proceeding conducted erroneously in a wrong sessions division "has in fact occasioned a failure of justice" it is open to the higher Court to interfere. While it is provided that all the instances enumerated in Section 461 would render the proceedings void, no other proceedings would get vitiated ipso facto merely on the ground that the proceedings were erroneous. The Court of appeal or revision has to examine specifically whether such erroneous steps had in fact occasioned a failure of justice. Then alone the proceedings can be set aside. Thus the entire purport of the provisions subsumed in Chapter XXXV is to save the proceedings linked with such erroneous steps, unless the error is of such a nature that it had occasioned a failure of justice.
14. We have to examine Section 465(1) of the Code in the above context. It is extracted below:
465(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal Courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior Court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani v. State of Karnataka 2001 Cri LJ 1075 (SC) (para 23) thus SCC p. 585, para 23:
23. We often hear about 'failure of justice' and quite often the submission in a criminal Court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment. The criminal Court, particularly the superior Court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.
17. It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified Sessions Court took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to the Special Court because that Court being essentially a Court of Session can take cognizance of any offence only then. But if a specified Sessions Court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said course?
18. It is apposite to remember that during the period prior to the Code of Criminal Procedure, 1973, the committal Court, in police charge-sheeted cases, could examine material witnesses, and such records also had to be sent over to the Court of Session along with the committal order. But alter 1973, the committal Court, in police charge-sheeted cases, cannot examine any witness at all. The Magistrate in such cases has only to commit the cases involving offences exclusively triable by the Court of Session. Perhaps it would have been possible for an accused to raise a contention before 1973 that skipping committal proceedings had deprived him of the opportunity to cross-examine witnesses in the committal Court and that had caused prejudice to his defence. But even that is not available to an accused after 1973 in cases charge-sheeted by the police. We repeatedly asked the learned Counsel for the accused to tell us what advantage the accused would secure if the case is sent back to the Magistrate's Court merely for the purpose of retransmission; of the records to the Sessions Court through a committal order. We did not get any satisfactory answer to the above query put to the counsel.
19. Shri. Sushil Kumar Jain made his last attempt by contending that Section 465 is restricted to any findings, sentence or order passed by "a Court of competent jurisdiction" and that a Special Court under the SC/ST Act which is essentially a Sessions Court would have remained incompetent until the case is committed to it. In support of the said contention, learned Counsel invited the following observation of this Court in H.N. Rishbud v. State of Delhi .
Section 190, Cr.P.C. is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith.
20. The question considered in that decision was whether an investigation conducted by a police officer, who is not competent to do it, vitiated the entire trial held on the basis of the report of such investigation. Their Lordships held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or procedure relating to cognizance or trial. The observations extracted above were therefore meant to apply to the said context and it is obviously not meant for holding that a Court of competent jurisdiction otherwise would cease to be so for the simple reason that the case was not committed to it. Learned Counsel also cited the decision in Ballabhdas Agrawal v. J.C. Chakravarty : 1960 Cri LJ 752 which dealt with the impact of Section 79 of the Calcutta Municipal Act, regarding the competence of maintaining a criminal complaint. That did not involve any question regarding a Court of competent jurisdiction.
21. The expression "a Court of competent jurisdiction" envisaged in Section 465 is to denote a validly constituted Court conferred with jurisdiction to try the offence or offences. Such a Court will not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non-compliance with the procedural requirement. The inability to take cognizance of an offence without a committal order does not mean that a duly constituted Court became an incompetent Court for all purposes. If an objection was raised in that Court at the earliest occasion on the ground that the case should have been committed by a Magistrate, the same specified Court has to exercise a jurisdiction either for sending the records to a Magistrate for adopting committal proceedings or return the police report to the Public Prosecutor or the police for presentation before the Magistrate. Even this could be done only because the Court has competence to deal with the case. Sometimes that Court may have to hear arguments to decide that preliminary issue. Hence, the argument advanced by the learned Counsel on the strength of the aforesaid decisions is of no avail.
22. The bar against taking cognizance of certain offences or by certain Courts cannot govern the question whether the Court concerned is "a Court of competent jurisdiction", e.g. Courts are debarred from taking cognizance of certain offences without sanction of certain authorities. If a Court took cognizance of such offences, which were later found to be without valid sanction, it would not become the test or standard for deciding whether that Court was "a Court of competent jurisdiction". It is now well settled that if the question of sanction was not raised at the earliest opportunity the proceedings would remain unaffected on account of want of sanction. This is another example to show that the condition precedent for taking cognizance is not the standard to determine whether the Court concerned is "a Court of competent jurisdiction".
23. In the case of Dhanraj Singh 2005 Cri LJ 3782 (supra), the learned single Judge of this Court held that due to noncompliance of Rule 7 of Rules 1995 which is a mandatory provision, the conviction and sentence under the Act 1989 cannot be sustained. In this case, the scope of Section 465 of Cr.P.C. and proposition laid down by the Apex Court in State of M.P. v. Bhooraji 2001 Cri LJ 4228 (supra) were not taken up for consideration. Therefore, the proposition laid down in Dhanraj Singh (supra) case is distinguishable.
24. Therefore, in view of the judgment in the case of State of M.P. v. Bhooraji (supra), the position is now very clear on the point that an investigation conducted by a police, officer who is not competent to do it would not vitiate the trial because a defect or, illegality in an investigation, however serious, has no direct bearing on the competence or procedure relating to cognizance or trial.
25. Therefore, the objection that due to non-compliance of Rule 7 of the Rules 1995, trial Court would vitiate (sic) is not correct and the submission as advanced by the counsel for the appellant is not acceptable.
26. Now, I will come to the merits of the case. As per FIR Ex. P-6, it alleged that the appellant along with co-accused Ghamadi came in the house of the prosecutrix in the late hours. They entered into the house of prosecutrix and the appellant committed sexual intercourse with the prosecutrix. Co-accused Ghamandi came along with the appellant and demanded flour from the prosecutrix. When she opened the door of the house appellant entered into the house, co-accused caught hold her, pressed her mouth and the appellant committed sexual intercourse with the prosecutrix. After completion of the act, the appellants ran away from the spot. On hearing the cry of the prosecutrix, the door of the house opened by the witnesses and she narrated the incident to Narbadi Bai (P.W. 3), Kanchedi (P.W. 4) and Gumani (P.W. 5). In the morning, she lodged the report at the police station from where she was sent for medical examination. The prosecutrix also admitted that her statement under Section 164 of Cr. P.C. was also recorded by the Magistrate. In her cross-examination, nothing appeared which suspects about the credibility of what has been said in the examination-in-chief she has denied that she has any illegal relations with the appellants. Prosecutrix, in the first instance, told that she sustained injuries but later on she denied to have sustained any injury. She also denied that head constable in the police station told her that she would get Rs. 50,000/- for the incident.
27. Narbadi Bai (P.W. 3) who is the maternal aunt-in-law of the prosecutrix only states that after hearing the cry she woke up and the prosecutrix only tpok names of the appellants. But what she does, she had not disclosed. Gumani (P.W. 5) also present there. Kanchedi (P.W. 4) corroborated that the prosecutrix told him that the appellant has committed rape upon her.
28. Dr. Manju Jain Singhai (P.W. 7) examined the prosecutrix. The report is Ex. P-5. According to the doctor, no mark of injury was found on her body and according to the doctor that no definite opinion can be given about the commission of rape as she is habitual of having sexual intercourse.
29. Doctor Shekhar Jalwankar (P.W. 1) examined the appellant and found that he1 is capable of performing sexual intercourse. His report is (Ex. P. 1).
30. The evidence of B.B. Sharma (P.W. 6) Badri Vishal Singh (P.W. 8) are formal in nature because both are police officers. From which, former recorded the FIR while latter stated that after receiving the police1 case diary he prepared the spot map Ex. P. 3 along with the Deputy Superintendent of Police and the evidence of the witnesses were recorded with the direction of the Deputy Superintendent of Police.
31. It is submitted by the counsel for the appellant that from the facts and circumstances of the case, the offence of sexual assault is not proved against the appellant because from the report it appears that it was dictated by others. Secondly, the report was lodged on false accusation for getting Rs. 50,000/-.
32. It has also been submitted that the prosecutrix is a widow and the manner in which the incident took place in the late hours, it is a case of consent. He also put his emphasis that the age of the prosecutrix is 35 years while the age of the appellant is 17 years. He also argued that no mark of injury seen on the person of the prosecutrix. The witnesses which were examined by the prosecution are relatives and interested. Therefore, the case of rape against appellant is not made out. In support of his contention he relied on Pratap Misra v. State of Orissa because there was no injury found on the body of the accused as well as of the prosecutrix. But the facts of this case are different. In that case, rape was committed by several accused persons upon the prosecutrix who was pregnant and she was awarded later on and in that pretext due to absence of injuries, the Apex Court allowed the appeal of the accused.
33. In this case, as the evidence came on record, it appears that co-accused caught hold her and the appellant committed sexual intercourse with the prosecutrix. She was all alone in her house. For not sustaining any injury, there are various factors and on the basis of alone while prosecution story cannot' be, disbelieved when the FIR is supported by the version of the prosecutrix. If it is a case of consent then, the prosecutrix may not tell the incident to other persons. She was all alone in the house and in this case if there had been consent, naturally the prosecutrix would not have cried and not have disclosed the incident to other persons of the locality.
34. In view of the above discussion and the evidence adduced by the prosecution, it is proved beyond reasonable doubt that on the night of incident, the appellant committed sexual intercourse with the prosecutrix and the findings of the trial Court are correct and based on legal evidence. Therefore, the conviction and sentence of the appellant under Section 376(2)(g) as awarded by the lower Court is affirmed.
35. Consequently, the appeal is hereby dismissed.