Madhya Pradesh High Court
Bharatsingh And Anr. vs State Of Madhya Pradesh on 12 July, 2006
JUDGMENT S.L. Kochar, J.
1. Being dissatisfied by the judgment dated 18-12-1997 passed by the learned Special Judge (under SC & ST (Prevention of Atrocities) Act in Special Case No. 66/97 thereby finding the appellants guilty of the offence punishable under Section 204, IPC and Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act (hereinafter referred to as the Act) convicted each of them and sentenced to pay a fine of Ra. 300/- each and R.I. for six months with fine of Rs. 500/ - in default of payment of fine (in total Rs. 800/-) each shall suffer additional R.I. for three months, the appellants have preferred this appeal.
2. Facts of the prosecution case as unfurled before the trial Court were that the complainant Rameshwar and Sobajsingh had established an idol of Godess Durga in Harijan locality of village Jamodi and on that occasion they had fixed the loud-speaker. On the idol and loudspeaker the accused persons threw stones and hurled abuse to Rameshwar and Sobalsingh in the name of their caste namely, BaLal-Chamar who reported the matter to the Tehsildar Executive Magistrate. Tonk Khurd in writing. The Tehsildar, Tonk forwarded that application of Rameshwar (Ex. P.1) to the SHO Pipalranwa who reduced a Dehati Naltshi (Ex. P. 3) in writing and registered FIR (Ex. P.4) on the basis of the Dehati Nalishi. Police prepared the Spot map and after due investigation, charge-sheeted the appellants. The appellants denied the charges.
3. In order to establish its case, prosecution examined ' the complainant Rameshwar, Sobalsingh and I.O. while the accused persons examined Dhansingh in their defence. After hearing learned Counsel for the parties, the trial Court found that appellants guilty of the aforesaid offences, convicted and sentenced them as indicated hereinabove.
4. After hearing the learned Counsel for the parties and perusing the entire record, this Court is of the considered view that the conviction of the appellants is not sustainable because the prosecution has failed to establish by adducing cogent and reliable evidence that the complainant (P.W. 1) Rameshwar belonged to the Scheduled Caste or Scheduled Tribe community. In the Court statement Rameshwar (P.W. 1) has deposed that he belongs to BaLal caste but no-where he has stated that-his caste falls within the category of Scheduled Caste or Scheduled Tribe. None of the prosecution witnesses has stated so though the appellants have admitted that the complainant belong to BaLal community but that itself is not sufficient to establish that the compLalnant belonged to the scheduled caste community. Learned trial Court, without any evidence on record, has held in para 8 of the judgment that the complainant Rameshwar (P.W. 1) and Sobalsingh (P.W. 2) belong to the Scheduled Caste Community. The prosecution has not filed any caste certificate issued by the duly competent authority to prove that the caste of the compLalnant Rameshwar falls within the category of Scheduled Caste. Filing of caste certificate is sine-quo-non. This Court has examined this issue in detail and held so in the caste of Bhagwansingh v. State of M.P. Cr. Appeal No. 1396/1988. The learned trial Court in its judgment has not decided this issue in the light of the definition of Scheduled Caste and Scheduled Tribe defined under Section 2, Sub-section (1)(c) of the Act which reads thus:
Scheduled Castes and Scheduled Tribes" shall have the meaning assigned to them respectively under Clause (24) and Clause (25) of Article 366 of the Constitution.
5. The next glaring defect in the prosecution case is that the investigation was done by Surendrasingh Jhala (P.W. 3), SHO P.S. Pipalranwa whereas according to Rule 7 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as the 'Rules') the investigation shall be made by a police officer not below the rank of a Deputy Superintendent of Police. Rule 7 of the 'Rules' is reproduced as under:
Rule 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 implication of the case and investigate it along with right lines within the shortest possible time.
(2) The Investigating Officer so appointed under Sub-section (1) shall complete the investigation on top priority basis 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.
6. On going through the Rule 7, it is manifest that all Deputy Superintendents of Police cannot investigate the offence under the Act., Only those Deputy Superintendents of Police, specifically appointed by the State Government or the Director General of Police or the Superintendent of Police or the competent authority for the purposes of investigating the case, under the Act can investigate the offence under this Act. This order of appointment can be either specific or general. The learned single Judge of the Andhra Pradesh High Court has expressed his view taking into consideration Rule 7 in the case of D. Ramalinga Reddy v. State of Andhra Pradesh 1999 Cri LJ 2918, that the investigation conducted by the Sub-Inspector of Police and not by the officer as envisaged under Rule 7 of the Rules, the whole trial is vitiated. Similar view has been expressed in a judgment of Madras High Court in the case of M. Ramu v. Superintendent of Police 1998 Mad LJR (Cri) 152. Also see Chinnaswamy v. State of Tamil Nadu 2000 Cri LJ 956; Mohan Chaudhary v. State of Bihar 2000 Cri LJ 1891(Patna High Court); R. Seshaiah v. State of Andhra Pradesh 2001 Cri LJ (NOC) 10; Ambati Vaikuntha-rao v. State of A.P. 2003 Cri LJ (NOC) 241; Javerchand Chawla v. State of A.P. 2000 (1) ALT (Cri) 540 : 2000 Cri LJ 3753(Andhra Pradesh High Court); Kotlia Palli Sunil Kumar v. State of A.P. 2003 (1) ALT (Cri) 297(Andhra Pradesh High Court); Ranjeet alias Rajatkumar Das v. State of Orissa 2003 (3) Crimes 476; M. Niranjan Reddy v. State of A.P. 2000 Cri LJ 3125; Mathura Singh v. State of Jharkhand 2002 Cri LJ 3798(Jha).
However, a contrary view has been taken by the learned single Judge of Andhra Pradesh High Court in the case of Penta Kota Koteshwarrao v. State of A.P. 1999 (3) Crimes 582 relying on the Supreme Court Judgments rendered in the cases of H.N. Rishbud and Indersingh v. State of Delhi ; Munnalal v. State of U.P. ; State of U.P. v. Bhagwant Kishore ; Dr. N.C. Suljunte v. State of Mysore and Khandu Sonu Boby v. State of Maharashtra . that "if congnizance is taken on. police report Initiated by a breach of mandatory provision relating to investigation, there can, be, no doubt that the result of the trial which follows, it cannot be set aside unless the illegality in investigation can be shown. to have brought about a miscarriage of justice." In the aforesaid Judgments, the Supreme Court has considered the breach of mandatory provision, for investigation, of Section 5A of the Prevention of Corruption Act, 1947 in the light of the provisions of Section 537 of the old Code of Criminal Procedure and new Section in 465(1) of the Cr. P.C.
7. The Judgment rendered by the learned single Judge of the A.P. High Court in the case of Penta Kota Koteshwarrao (supra) has not been referred and considered in the aforesaid judgments passed by the various High Courts i.e. Madras High Court, learned single' Judge of Andhra Pradesh High Court, Orissa High Court and Patna High Court. Therefore, this Court is of the view that the legal point involved regarding interpretation of Rule 7 of the Rules requires consideration. The judgment passed in the case of Penta Kota (supra) is based on interpretation of Section 5A of the Prevention of Corruption Act, 1947. For the sake of convenience, this provision Is reproduced here as under:
5-A. Investigation Into cases under this Act.- Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank,-
(a) in the ease of Delhi Special Police Establishment, of an Inspector of Police;
(b) in the Presidency towns of Calcutta and Madras, of an Assistant Commissioner of Police;
(c) In the Presidency town of Bombay, of a Superintendent of Police; and
(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, S.163 or Section 163A of the Indian Penal Code or under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be, or make any arrest therefore without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police Is authorised by the State Government in this behalf by General or Special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be, or make arrest there for without a warrant:
Provided further that an offence referred to in Clause (c) of Sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of Superintendent of Police.
(2) If from information received or, otherwise a police officer has reason to suspect the commission of an offence which he is empowered to investigate under Sub-section (1) and considers that for the purpose of investigation or enquiry into such offence, It is necessary to inspect any banker's books, then, notwithstanding anything contained in any law for the time being in force, he may Inspect any banker's books in so far as they relate to the accounts of the person subjected to have committed that offence or of any other person suspected to be holding money on behalf of such person and take or cause to be taken certified copies of the relevant entries there from and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this sub-section:
Provided that no power under this sub-section in relation to the account of any person shall be exercised by a police officer below the rank of a Superintendent of Police unless he is specially authorised in this behalf by a Police Officer or of above the rank of a Superintendent of Police.
Explanation. - In this sub-section the expression "Bank" and "banker's books' shall have the meanings assigned to them in the "Bankers Books Evidence Act, 1891.
8. On comparison of Rule 7 of the Rules and Section 5 of the Prevention of Corruption Act, 1947 (hereinafter referred to as the PC Act), the same are not part materia. According to Section 5A of the PC Act, only specified Police Officers by the Magistrate or the State Government can investigate the offences falling under Sections 161, 165 or Section 165A of the Indian Penal Code or under Section 5 of the Prevention of Corruption Act. But, Rule 7 of the Rules not only specified the police officer authorised to investigate the offences, but, the criteria for appointment of such police officer by the State Government/Director General of Police or the Superintendent of Police is also prescribed. The police officer not below the rank of Dy. Superintendent of Police can be appointed to investigate on the basis of his past experience, sense of ability and Justice and the officer can also be able to understand the effect of the case as well as be able to investigate the case effectively on right line within the shortest possible time. For appointments of the officer under Section 5A of the P.C. Act for investigation, the aforesaid criteria and the aforesaid requirements are not prescribed. Why the legislation chose to prescribe such special criteria even for appointment of a senior police officer of the rank of Dy. Superintendent of Police for investigating the offences falling under Section 3 of the Act, is to understand and consider on the basis of statement of objects and reasons, for bringing this special enactment, the same is published at page 11 of the Gazette of India on 9-8-1989 in Part II, Section 2 which runs as follows:
Despite various measures to improve the socio economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, Indignities, humiliations and harassment. They have, In several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.
(2) Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and reasis (sic) practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the might, occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Castes persons eat inedible substances like human excreta and attacks on and mass killings to the helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by the non-Scheduled Castes and the non Scheduled Tribes has, therefore, becomes necessary.
(3) The form 'atrocity' has not been defined so far. It is considered necessary that not only the term 'atrocity' should be defined but stringent measures should be introduced to provide for higher punishments for committing such atrocities. It is also proposed to enjoining on the States and the Union territories to take specific preventive and punitive measures to protect the Scheduled Castes and the Scheduled Tribes from being victimised and where atrocities are committed, to provide adequate relief and assistance to rehabilitate them.
(4) The Bill seeks to achieve the above objects.
9. It is manifest from the statement of objects and reasons that the enactment has been brought to improve socio-economic and political conditions of the members of the Scheduled Castes and Scheduled Tribes and also to prevent the commission of offences of atrocities against them by the members other than falling in this category. The stringent provisions have been made for punishment. The Act has prescribed formation of special Court for early disposal of cases. The offences' which are minor in nature in the Indian Penal Code are made serious one and minimum jail sentence has been prescribed for the offences falling under Section 3(1) of the Act, whereas for the same kind of offences in the IPC, even the jail sentences are not mandatory. There is complete bar of application of Section 438 of the Cr. P.C. for grant of anticipatory bail, as per provision under Section 18 of the Act. All the offences are made non-bailable, whereas some of the offences under Section 3(1) of the Act falling under the IPC are bailable.
10. Under the Rules, special provisions have been prescribed for grant of financial relief in case and/or kind or both to the victims of atrocities, or family members and dependents, according to the scale as in the schedule annexed to the Rules (Annexure 1 read with Annexure 2). This financial relief In cash or kind is prescribed only in this penal enactment. This relief Is to be provided by the State Government as per Rule 14. No such kind of relief in cash or kind is prescribed for the victim in any other penal enactment.
11. The former Chief Justice of M.P. High Court and Author of "Principles of Statutory Interpretation" Shri G.P. Singh made the observations considering the pros and cons of the enactment in the forewords written in the commentary on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by former Justice Shri S.K. Chawla for the M.P. High Court, which reads as under:
It cannot be lost sight of that the provisions of the Act are open to abuse and there is scope for false implication due to previous enmity or for other reasons, such as for obtaining monetary relief payable under the Rules, which has also been judicially noticed. Further, any special treatment of a class of persons at a certain stage has a tendency to perpetuate the division in the community against the ideals of equality and fraternity aimed at by the Constitution and affirmative action gives rise to reverse discrimination. It is for this reason that special provisions made for reservation of seats for the Scheduled Castes and the Scheduled Tribes in Parliament, State Legislatures, Municipalities and Panchayats are temporary features and will now expire on 25th January, 2010 unless further extended by Constitution Amendment as has been done in the past after every ten years, whether as a matter of real need or out of political compulsion. Continuance of the provisions of the Act may also be working to some extent to the disadvantage of the members of the Scheduled Castes and the Scheduled Tribes for employers may be hesitant in employing them under the apprehension that any genuine adverse action taken against the employee may be projected as an atrocity punishable under the Act. May I, therefore, suggest an impartial and thorough review of the working of the Act of the last fifteen years and the Act may be withdrawn at least from the areas which are not prone the crimes made punishable under this Act.
12. With great respect, this Court does not agree with the ratio decided in the case of Penta Cota Koteshwar Rao (supra) that the provision of Section 5 of the Prevention of Corruption Act and Rule 7 of the Act are pari materia. The Division Bench of Bombay High Court in the case of Shatrughan Sharma Kamble (2003 Cri LJ 790, para 15) has also held that the provisions under the Prevention of Corruption Act and Scheduled Castes and Schedueld Tribes (Prevention of Atrocities) Act are not identical with regard to the power of Investigation. But, the Division Bench of Bombay High Court, relying on the Supreme Court judgment passed In the case of H.N. Rlshbud (1955 Cri LJ 526)(supra) held that in view the provisions under Section 465 of the Cr. P.C. though investigation was done by Sub-Inspector of Police, but, the accused failed to point out any prejudice caused to him, set aside the order of discharge passed by the learned Addl. Sessions Judge and directed to pass appropriate orders to rectify the defect and cure the illegality in the investigation, by order, the Dy. Superintendent of Police to investigate the matter.
13. Learned Counsel for the appellants has submitted that the provisions of Section 465 of Cr. P.C. which reads as under, shall not apply in the instant case:
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.
According to the learned Counsel, if 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 in the Court on the basis of some, finding, sentence or order passed by a Court of competent jurisdiction cannot be reversed or altered unless in the opinion of. the Court, a failure of justice has in fact been occasioned thereby. Learned Counsel has emphatically submitted that according to Rule 7 of the Act, investigation done by the Police Officer below the rank of Dy. Superintendent of Police, appointed as per provision of this rule, is a question of doing investigation having no jurisdiction. According to him, the question of jurisdiction of Court or any authority can be raised at any stage. As per Section 465 (ibid) the finding and sentence or order passed by a Court of competent jurisdiction shall not be reversed or altered by a Court of appeal, confirmation or revision on the ground mentioned In the section. For this purpose, the condition precedent, is that the finding, sentence or the order must be passed by a Court of competent jurisdiction. If the finding, sentence or order passed by a Court having no jurisdiction, the provision under Section 465 of the Cr. P.C. would not apply. Likewise, when the Investigation was done by officer having no jurisdiction, then the question of application of Section 465, Cr. P.C. would not arise. According to him, the clear meaning of Section 465, Cr. P.C. is that though the investigation is covered under the words "other proceedings under this Code, but same must be done by officer having jurisdiction to do so and if investigation is without jurisdiction then Section 465 of the Code shall not be applicable.
14. Having considered the submissions of the learned Counsel for the appellants regarding interpretation of Section 465, Cr. P.C. this Court is of the view that this section has already been interpreted by the Supreme Court in the case of H.N. Rishbud (1955 Cri LJ 526)(supra) and followed thereafter in the series of the cases, the same is binding on this Court. Therefore, the arguments advanced is of no avail.
15. Having given anxious consideration to the rival contentions and judgments passed by the various High Courts directly dealing with the provisions of Rule 7 of the Act, and this rule is not part materia to Section 5 of the Prevention of Corruption Act, therefore, this Court is of the opinion that the Investigation done by inferior officer of the police, than the Superintendent of Police duly appointed as per the provision under Rule 7 has caused prejudice to the appellants because the Investigating Officer even did not obtain the certificate from the competent authority to establish that the complainant belongs to the Scheduled Caste or Scheduled Tribe Community, shows that the Investigating Officer (Sub-Inspector of Police) was not aware of the provisions of the Act and Rules and investigated the matter in a routine manner. If investigation would have been done by designated police officer, he would have probably first ascertained whether complainant was falling within the category of Scheduled Caste or Scheduled Tribe.
16. In the result, on the basis of the foregoing legal and factual analysis, this Court is of the view that the conviction and sentence of the appellants passed by the Court below is not sustainable. Therefore, the same is hereby set aside and the appellants are acquitted. They are on bail, the same shall stand discharged.