Orissa High Court
Jhula Behera Alias Dalai And Anr. vs State Of Orissa on 4 January, 2000
Equivalent citations: 2000(I)OLR208
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Heard.
2. This application Under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'the Code') is disposed of at the stage of hearing on admission after hearing the parties at length.
3. Petitioners are arrayed as accused persons in G. R. Case No. 383/ 99 arising out of AthgarhP. S. Case No. 173/99. The case has been registered Under Sections 364/342/323/34, IPC read with Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, the 'Act'). The case is pending at the stage of investigation and the Sessions Judge-cum-Special Judge, Cuttack is awaiting for Final Form.
4. Petitioners have prayed to quash the investigation on the grounds that:
(i) According to Rule 7 of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short the 'Rule'), which has been made under the Act, a police officer not below the rank of Deputy Superintendent of Police is required to investigate the case, but presently the O. I. C. of Athgarh Police Station is investigating the offence which is impermissible according to the said Rule.
(ii) Petitioners belong to Scheduled Caste (in short, 'S. C. ') hence registration of the case against them for the offence punishable Under Section 3 of the Act for the alleged incident of assault on S. C. is a misconceived one.
(iii) Because of the party factions, a false case has been foisted against them though the informant and his supporters are facing a murder case for killing two persons of the present petitioners' group and in that respect the O. I. C. is siding with the said adverse party and inducing and terrorising the petitioners not to depose against the murderer.
5. Learned Addl. Standing Counsel appearing for the opposite party State concedes that investigation of the case, when registered Under Section 3 of the Act, should be conducted by a police officer not below the rank of Deputy Superintendent of Police. He, however, argues that the allegation of a false case having been foisted against the petitioners is not true. He further argues that it is to be ascertained during the investigation if the accused persons are members of Scheduled Caste or Scheduled Tribe (in short, 'S. C. or S. T. ').
6. In Clauses (i) to (xv) under Sub-section (1) and in Clauses (i) to (vii) under Sub-section (2) of Section 3 of the Act different offences and their respective punishment is provided. Sub-sections (1) and (2) begin with the language "Whoever, not being a member of Scheduled Caste or Scheduled Tribe". It is thus clear from the said provision that if anybody being a member of S. C. or S. T. alleged to have committed any of the offences punishable under Sub-sections (1) and/or (2) of Section 3 of the Act then in view of the above quoted non-obstante clause such person cannot be booked for the offences Under Section 3 of the Act.
7. The issue which presently is being dealt with is when the accused or some of them claim to be member of S. C. is registration of the case under Section 3 of the purpose of investigation and/or for trial can be said to be illegal ? On the considered opinion of this Court it will not be illegal for the reasons indicated hereafter.
8. When a first information report is lodged or complainant is brought or comes to the knowledge of the concerned authorities (as provided in the Act) that any of the atrocities was committed against person belonging to S. C. and S. T. and at that stage nothing is disclosed or could be known to the investigating officer or the Special Court that any or all the accused of such offence is/are member of S. C. or S. T., as the case may be, then registration of the case Under Section 3 of the Act cannot be regarded as irregular or illegal at the threshold. The investigating officer, however, during the course of investigation, may ascertain if any or all the accused persons belong to such reserved categories and report the matter to the Special Court while submitting Final Form. If the investigating officer could not ascertain in the aforesaid manner or did not report if any of the accused belong to reserved categories, at the stage of commencement of the trial, accused claiming to be belonging to S. C. or S. T. (i. e. reserve categories) may bring such materials to the notice of the Special Court praying for not to frame charge Under Section 3 of the Act against such accused. The trial Court may consider it appropriately and if necessary may cause a summary enquiry to satisfy himself about such claim of the accused and thereafter to proceed with the trial in accordance with the law. Apart from that even at the stage of recording of evidence, accused can advance that plea and if necessary may advance defence evidence in support of such claim.
9. If the offence alleged to have been committed by more than one person and any or all the offences are punishable Under Section 3 of the Act and also by any other law including Indian Penal Code in which one or more accused admittedly belong to reserve categories (S. C. and/or S. T. ) in such cases also for the purpose of investigation and trial one case should be registered. That is not only desirable but also necessary notwithstanding in that respect absence of specific procedure prescribed in the Act and the Rule inasmuch as there is no debarring provision in such law to prohibit investigation and trial in the aforesaid manner by the same investigating officer and trial in the same Special Court. In that context it may be noted that Juvenile Justice Act, 1986 (in short 'the Act, 1986') is a special statute like this Act. In the Act, 1986, it is prescribed for trial of the juvenile by Juvenile Courts {see Section 5, Juvenile Justice Act) but not provision has been made providing for a separate investigation of the cases involving juvenile offenders. However, in the Act 1986 provision has been made. for separate trial of juvenile delinquents but in the Act, no such provision is made for separate trial of the persons belonging to reserved categories in an occurrence where the offenders belong to both reserved and unreserved categories. In such a case all that is required to be done by the Special Court is not to formulate and/or frame charge for any of the offences punishable Under Section 3 of the Act against the accused who belongs to any of the reserved categories. Under the given circumstances, that is the proper way to deal with the case in the aforesaid manner because if the procedure should be followed in converse way it does not come even to the convincity of convenience in disposal of the investigation and trial in comprehensive manner meeting with the requirement of law and precedent.
10. So far as the second point in argument advanced by the petitioner, it is thus held that at the time of registration of the case for any offence committed against persons belonging to S. C. or S. T., if it is known to the investigating officer that the offenders are also members belonging to S. C. and S. T, then a case Under Section 3 cannot be registered for investigation and trial. If such a fact is not known, the investigating officer may try to ascertain the same during the course of investigation and accordingly mention the matter in the Final Form. If that is not done in that manner, at the time of appearance or consideration of charge by the Special Curt the offenders, if so like, may bring such fact to the notice of that Court and in that event the Special Court, if satisfied, may accept such contention or may cause a summary enquiry to ascertain the fact if the accused belongs to the reserved categories and thereafter to pass appropriate order whether to try the case or send it to a proper Court for trial. However, at the time of recording of evidence, accused is not debarred to take a defence plea in that respect. On the other hand, when it is doubtful as to whether such offender is a member belonging to reserved categories the issue shall be decided, on appreciation of evidence, at the conclusion of the trial. But when the accused persons are more than one and some of them are or claim to be members belonging to the reserved categories one investigation should be done. In that, the investigating officer, during the curse of investigation, if ascertains in the aforesaid manner that actually one or more of such offenders are members belonging to the reserved categories, then that fact be indicated in the Final Form and the offenders belonging to the reserved categories need not be booked for the offence Under Section 3 of the Act. However, if a charge-sheet is filed without mentioning such facts, as above, then after appearance or at the time of commencement of the trial, those accused who belong to reserve categories may bring it to the notice of the Special Court and if satisfied with the contention of such offenders, the Special Court need not frame charge Under Section 3 of the Act against such offenders who belong to reserved categories though they may be charged, by the Special Court, for any other offences alleged to have been committed by such offenders. Thus for the self-same occurrence committed or abated with offenders belonging to the unreserved categories, the offenders belonging to the reserved categories need not be separately tried.
11. Thus any of the accused involved in Athagarh P. S. Case No. 173 of 1 999 corresponding to G. R. Case No. 383 of 1999 of the Special Court-Cum-Sessions Judge, Cuttack if claims to be a person belonging to member of S. C. or S. T. he may seek the remedy in the aforesaid manner.
12. So far as the investigation of a case registered for the offences Under Section 3 of the Act is concerned, Rule 7 of the Rules provides that:
"7. 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 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 receipt 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."
Sub-rule (1) of Rule 7 provides it unambiguously that offence committed under the Act shall be investigated by a Police Officer not below the rank of Deputy Superintendent of Police. In that connection. Section 9 of the Act provides that: -
"9. Conferment of powers - (1) Notwithstanding anything contained in the Code or any other provision of this Act, the State Government may, if it considers it necessary or expedient so to do, -
(a) for the prevention of and for copying with any offence under this Act, or
(b) for any case or class or 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 particular, the powers of arrest, investigation and prosecution of persons before any Special Court.
(2) All officers of police 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).
So by virtue of the above enabling power it is the duty and the responsibility of the State Government to issue notification conferring power of investigation of the cases by notified police officer not below the rank of Deputy Superintendent of Police, for different areas in the police districts. Learned Addl. Standing Counsel is unable to state whether such notification has been issued by the State Government but fairly concedes that investigation should be done by a police officer not below the rank of Deputy Superintendent of Police.
13. It be noted that Chapter XII in the Code of Criminal Procedure, 1973 relates to "Information to the police and their powers to investigate". Sub-section (1) of Section 154 therein provides for receiving the information i. e. the First Information Report and requisition of case in police station. Rule 5 of that Rules in that respect provides that:
"5. Information to Police officer-in-charge of a police station - (1) Every information relating to the commission of an offence under the Act, if given orally to an officer-in-charge of a police station shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writings as aforesaid, shall be signed by the persons giving it, and the substance thereof shall be entered in a book to be maintained by that police station.
(2) A copy of the information as so recorded under Sub-rule (1) above shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in Sub-rule (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who after investigation either by himself or by a police officer not below the rank of Deputy Superintendent of Police, shall make an order in writing to the officer-in-charge of the concerned police station to enter the substance of that information to be entered in the book to be maintained by that police station. "
In view of the above quoted provision it is apparent that whenever a report is lodged or information given orally or in writing relating to commission of an offence Under Section 3 of the Act, the officer-in-charge of the police station is invested with the authority to receive the same in the manner provided therein. It be further noted that all the offences provided in Sub-sees. (1) and (2) of Section 3 are cognizable offences in view of the "Classification of Offences against other Laws" in Schedule- I of the Code. Sub-section (1) of Section 156 provides for investigation of cognizable cases by the officer-in-charge of police station without the order of the Magistrate having jurisdiction to enquire into or try under the provisions of Chapter XIII of the Code. Section 157 of the Code provides the procedure for investigation which includes investigation being conducted by the O. I. C. himself or by one of the subordinates who is competent to investigate as per general or special order of the State Government. Sub-section (2) of Section 156 provides that:
"No proceeding 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."
(underlined to put emphasis) Rule 7 of the Rules having provided the rank of an investigating officer to be not below the rank of the Deputy Superintendent of Police, an officer below that rank cannot act as investigating officer. The above quoted Sub-section (2) of Section 156 cannot grant protection to an investigation done by an officer not provided in Rule 7 of the Rules or any other provisions in the Act and the Rule because such protection is available for investigation done by an officer not empowered or authorised under Sub-section (1) or (3) of Section 156 but not relating to an investigation as per the provisions in the Act and/or Rule.
14. Learned counsel for the petitioners states that investigation is being conducted by the concerned officer-in-charge of the police station. In other words investigation is not yet completed. Under such circumstance, the concerned investigating officer be directed to hand over the investigation to a competent police officer and in that respect the concerned Superintendent of Police may pass necessary orders. Learned Addl. Standing Counsel shall intimate the concerned Superintendent of Police. The State Government may see to proper implementation of the provisions in the Act and the Rule in proper manner so that wrong- doers may not get exits on technical points. In view of the above direction there is no need to quash the investigation.
15. In furtherance of the prayer to quash the investigation petitioners' third contention is two fold i. e., a false case is foisted and the investigating officer is a supporter of the informant's group. Petitioners state that a false case has been fabricated against them because of enmity. In that respect a fact finding enquiry at this stage by this Court is wholly uncalled for. Truth or falsity in the allegation can be ascertained during the investigation. Apart from that, if a charge-sheet shall be filed, petitioner can advance and may substantiate the plea of falsity in the allegation while contesting the case in the trial Court. So far the contention regarding bias of the present investigating officer is concerned, that has been eradicated by directing the State to entrust the investigation to a competent officer of the rank of Deputy Superintendent of Police. However, it be made clear that the above change of the investigating officer is directed in view of the provision of law and not otherwise.
16. In view of the above noted findings prayer of the petitioners to quash the investigation is not accepted and accordingly the criminal misc. case is dismissed.
A free copy of this order be supplied to the Addl. Standing Counsel for appropriate steps at his end.