Bombay High Court
Ramnath Sadashiv Koltharkar vs The State Of Maharashtra on 10 December, 1998
Equivalent citations: 1999(5)BOMCR255, 1999BOMCR(CRI)~, 1999(2)MHLJ743
Author: D.G. Deshpande
Bench: D.G. Deshpande
ORDER D.G. Deshpane, J.
1. Heard Mr. Bichu for the applicant and A.P.P. for the State.
2. The petition is filed for quashing the order of the Special Judge (U.D. Salvi), Mumbai, dated 4-12-1997 by which he rejected the application of the accused petitioner which was filed for discharge.
3. Mr. Bichu contended that the accused was charge-sheeted for offences under the provisions of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, hereinafter referred to as the "Act of 1989". The alleged offence took place on 3-4-1997. F.I.R. was filed on 28-4-1997. Investigation was completed and last statement was recorded on the same date i.e. 28-4-1997 and charge sheet came to be filed in August, 1997. According to him the accused had claimed discharge on a purely legal ground arising from the provisions of the Act of 1989 itself. He urged that under section 9 of the said Act of 1989, it was for the State Government to appoint any officer of the Government with powers under this Act for the purpose of carrying out investigation in respect of the offences under this Act and the State Government could confer such powers by notification in Official Gazette. However, according to him section 23 of the Act of 1989 gives powers to the Central Government to make rules for carrying out the purposes of this Act and these rules are to be published by notification in Official Gazette. Accordingly, rules have been framed by the Central Government and they are in force from 31-3-1995. The Act came in force in January 1990 and from 1990 to 31-3-1995 the offences under the Act could be investigated by any Police Officer. According to Mr. Bichu the situation has changed after rules came into force and by virtue of Rule 7 it has been specifically directed that offences shall not be investigated by any Police Officer who is below the rank of Deputy Superintendent of Police who is equivalent to the Assistant Commissioner of Police in Mumbai.
4. According to Mr. Bichu Rule 7 is mandatory and investigation of any offence under this Act has to be done by Police Officer not below the rank of the Deputy Superintendent of Police. However, according to him the investigation in the instant case was done by P.S.I. and therefore the whole investigation was vitiated by virtue of the aforesaid relevant provisions of the Act. However, his contention was negatived by the Special Judge and hence this petition.
5. On the other hand it was contended by learned A.P.P. that the Special Judge rightly relied upon the circular issued by the Commissioner of Police on 24-6-1997 under which officer-in-charge of the police station have been empowered to carry out investigation for the offences under this Act. The learned A.P.P. further contended that all the papers of the investigation in the instant case were scrutinised and verified by the superior officers and therefore there was no illegality committed- He also contended that the accused cannot claim discharge on the ground of illegality in the investigation unless the accused succeeds in proving that he has ben seriously prejudiced in his defence. Further, he contended that along with offences under this Act of 1989 the accused are also charge-sheeted for offences under section 353 and 504 of the I.P.C. Lastly, A.P.P relied upon two Judgments of Supreme Court Munnalal v. State of Uttar Pradesh, and 1971 Cri. L.J. 1153 Muni Lal v. Delft Administration.
6. So far as the provisions of section 9 and 23 and Rule 7 are concerned, there cannot be any dispute that powers to carry out investigation or for implementing the provisions of the Act of 1989 can only be conferred by the State Government on any officer by publication of a notification in the Official Gazette. It is also clear from the provisions of section 23 that the Central Government is empowered to frame rules for carrying out the purposes of this Act and those rules were accordingly framed and brought into force from 31-3-1995. Rule 7 specifically directs and provides that the investigation in respect of offences committed under the Act of 1989 shall be done by Police Officer not below the rank of Deputy Superintendent of Police.
7. From the aforesaid provisions it is clear that the Central Government has authorised only a Police Officer of the rank of Deputy Superintendent of Police to investigate into the offences under this Act of 1989 and as against this there is no notification of the Government of Maharashtra empowering other officers below the rank of Deputy Superintendent of Police to investigate the offences under this Act of 1989. Considering the object of the Act and preamble, it cannot be said that giving powers to the officers of the rank of Deputy Superintendent of Police and not giving such powers to any inferior officer was a mere formality. It appears to be the intention of the legislature that offences under this Act are investigated by the senior officer of the rank of Deputy Superintendent of Police but there also merely holding that post also does not qualify an officer to get powers to investigate the offences. Rule 7 does not provide that every Deputy Superintendent of Police is empowered to carry out the investigation under this Act of 1989. What it provides is that the State Government, the Director General of Police or Superintendent of Police after taking into account the past experience, sense of ability and justice to perceive the implications of the case can be appointed and shall be appointed to carry out the investigation under this Act of 1989. It is therefore clear that mere holding the post of Deputy Superintendent of Police is not sufficient to get the powers for investigation under this Act but Deputy Superintendent of Police has to be appointed and he can only be appointed if his experience, sense of ability and justice to perceive the implications stand to the scrutiny of the Government or Director General of Police or Superintendent of Police
8. The learned A.P.P. could not point out that any notification in the Official Gazette has been issued by the Government of Maharashtra empowering any Police Officer below the rank of Deputy Superintendent of Police to carry out investigation under this Act of 1989. It was tried to be contended by the learned A.P.P. that circular dated 24-6-1997 on which reliance was placed by the prosecution before the Special Court is a Government Notifications under section 9 and that is published in the Official Gazette. However, the said circular which is at Exhibit B collectively does not at all support the learned A.P.P. What is stated in Clause 1 or para 1 of the said circular that rules have been framed by the Central Government and that they have been published in extra-ordinary Government Gazette.
9. Since the provisions of section 9 and Rule 7 are mandatory and since the Government of Maharashtra has hot issued any notification in that regard, this circular relied upon by the prosecution dated 24-6-1997 and issued by the Commissioner of Police cannot be of any help in this matter. Firstly, because the Commissioner of Police is not authorised by the Act of 1989 to issue a circular. Secondly he has no authority to circumvent the rules framed by the Central Government and thirdly this circular is dated 24-6-1997 whereas the investigation in the instant case was completed two months earlier i.e. on 28-4-1997. Therefore this circular dated 24-6-1997 is of no help to the prosecution.
10. On the basis of the aforesaid two rulings the Special Judge held that merely because the investigation is carried out by P.S.I. accused cannot claim discharge and the accused has to satisfy the Court that he is seriously prejudiced in his defence. Both these cases of the Supreme Court are of no help to the prosecution because admittedly in this case the objection regarding illegality in investigation was raised at the appellate stage. Rightly, therefore, the Supreme Court observed that when the accused had submitted to the jurisdiction and the trial Court has allowed the trial to proceed and has allowed it to be concluded then firstly he cannot take objection to the illegalities in the investigation and secondly even if such objection is taken the same cannot be entertained until the accused satisfies the Court that because of the illegalities in the investigation he was seriously prejudiced.
11. In the instant case the accused has even before framing of the charge raised the objection to the patent illegality in the investigation. It cannot therefore be said that even if the accused raise such an objection the same should be turned down on the ground that there is no prejudice caused to the accused. If the Act has provided and has made it mandatory that the investigation is to be carried out by the officer not below the rank of Deputy Superintendent of Police and when on the face of it, in the instant case the same has been done by the police officer of the rank of P.I. then the accused has a right to raise objection regarding illegality in the investigation! No question of proving prejudice arises when such objection is raised even before framing of the charge. Both these judgments are therefore of no help to the prosecution.
12. Lastly, my attention was, drawn by learned A.P.P. to Rule 23 of the aforesaid rules, which empowers the State Government to make rules. However, even this provision does not help the prosecution in the instant case because what is provided by Rule 23 is that the State Government by a notification make rules "not being a matter for which the rules are or required to be made by the Central Government for carrying out the provisions of this Act. The State Government cannot make rules covering those same subjects, therefore the power of the State Government to make rules is a limited power and it can only be exercised in respect of matters which are not covered by the rules framed by the Central Government. For all these reasons, the petition is required to be allowed. However, prayer of the accused to discharge him from all the offences cannot be allowed and granted because along with the offences under the Act of 1989, he has also been charge-sheeted under I.P.C. Therefore, he will have to face the prosecution for those offences. Hence the order:
ORDER Petition partly allowed. Proceedings against the accused under the Scheduled Caste and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 are quashed. Accused will have to face his prosecution under section 353 and 504 of the I.P.C. and for that purpose he will appear before the Special Judge. The Special Court will consider whether it can proceed with the trial under the provisions of the I.P.C. Accused to appear before the Special Judge on 22-12-1998. '
13. Petition partly allowed.