Patna High Court
Smt.Ram Deni Devi & Anr vs The State Of Bihar & Ors on 18 January, 2011
Equivalent citations: 2011 CRI. L. J. 2408, (2011) 102 ALLINDCAS 550 (PAT), 2011 (102) ALLINDCAS 550, 2011 (74) ALLCRIC 31 SOC, (2011) 1 PAT LJR 1097
Bench: Chief Justice, Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL WRIT JURISDICTION CASE No.7489 of 2006
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1. Smt. Ram Deni Devi, W/o Late Sharma Choudhary resident of village
Rajwara, P.S. Sahebganj, District-Muzaffarpur.
2. Shiv Jatan Baitha, S/o Ramphal Baitha, resident of village Rajwara, P.S.
Sahebganj, District-Muzaffarpur.
.... .... Petitioners
Versus
1. The State of Bihar.
2. The Home Secretary, Government of Bihar, Patna.
3. The Director General of Police, Bihar, Patna.
4. The Superintendent of Police, Muzaffarpur.
5. The Officer-in-charge, P.S.-Sahebganj district-Muzaffarpur.
6. The Canara Bank through the Deputy General Manager, Circle Office,
Canara Bank, Luv-Kush Tower, Exhibition Road, Patna.
.... .... Respondents
======================================================
WITH
CIVIL WRIT JURISDICTION CASE No.16407 of 2007
======================================================
Ambuj Sharma @ Ambuj Kumar Sharma son of Narsing Singh, resident of
Village-Sachai, P.S. Kurtha, District-Arwal.
.... .... Petitioner
Versus
1. The State of Bihar through the Chief Secretary.
2. The Commissioner-cum-Secretary, Department of Home (Police),
Government of Bihar, Patna.
3. The Director General of Police, Bihar, Patna.
4. The Superintendent of Police, Aurangabad.
5. Rajaram Yadav, Son of Keshav Yadav, resident of Village- Mijanpur,
P.S. Uphara, District-Aurangabad.
.... .... Respondents
======================================================
WITH
CIVIL WRIT JURISDICTION CASE No.15490 of 2008
======================================================
Anil Kumar son of Late Ramesh Chandra Verma, Resident of Mohalla-
Sheoganj, P.S. Ara Town, District-Bhojpur.
.... .... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Bihar, Patna.
2. Commissioner-cum-Secretary, Home (Police) Department, Old
Secretariat, Bihar, Patna.
3. The Union of India through Secretary, Ministry of Law, Justice and
Company Affairs, New Delhi.
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4. Secretary, Ministry of Law, Justice and Company Affairs, New Delhi.
5. Manager, Government Press, Gulzarbagh, Patna.
.... .... Respondents
======================================================
WITH
CIVIL WRIT JURISDICTION CASE No.18736 of 2008
======================================================
Dalit's Watch through its Secretary namely Umesh Kumar Kundan, son of
Bhuneshwar Manjhi, residence of village-Shivalapar, P.O.-Neora, P.S.-
Shahpur, District-Patna.
.... .... Petitioner
Versus
1. The State of Bihar through its Chief Secretary, Old Secretariat, Patna,
Bihar.
2. Principal Secretary, Welfare Department, Government of Bihar, Old
Secretariat, Patna.
3. The Director General of Police, Government of Bihar, Old Secretariat,
Patna, Bihar.
4. The Commissioner cum Secretary, Home (Police) Department,
Government of Bihar, Old Secretariat, Patna, Bihar.
5. Union of India through its Secretary, Social Justice and Empowerment
Ministry, New Delhi.
6. National Commission for Scheduled Castes through its Secretary, New
Delhi.
.... .... Respondents
======================================================
Appearance :
(In CWJC No.7489 of 2006)
For the Petitioner: Mr. R.K.Rajan, Advocate
For the Respondent State: Mr. Ashutosh Kumar, A.C. to G.P.-2
For the Respondent No.6: Mr. B.K.Sinha, Senior Advocate with
Mr. Indrajeet Bhushan, Advocate
Mr. Manish Kumar, Advocate
(In CWJC No.16407 of 2007)
For the Petitioner: Mr. Dinu Kumar, Advocate with
Mr. Shivendra Prasad, Advocate
For the Respondent State: Mr. Prasoon Sinha, G.A.-2 with
Mr. Prabhat Kumar, A.C. to G.A.-2
(In CWJC No.15490 of 2008)
For the Petitioner: Mr. Baxi S.R.P. Sinha, Senior Advocate with
Mr. Rahul Nath, Advocate
For the Respondent State: Mr. Ahsanuddin Amanullah, G.A.-4
For the Respondents 3 &4: Mr. Dwivedy Surendra, C.G.C.
(In CWJC No.18736 of 2008)
For the Petitioner: None
For the Respondent State: Mr. Prasoon Sinha, G.A.-2 with
Mr. Prabhat Kumar, A.C. to G.A.-2
For the Respondent No.5&6: Mr. Dwivedy Surendra, C.G.C.
==========================================================
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
18.1.2011. These four petitions filed under Article 226 of the
Constitution raise common challenge to the constitutional validity
of the Government Notification dated 3rd June 2002 published in
the Official Gazette of the State of Bihar on 9th August 2008.
The petitioners in C.W.J.C. No. 7489 of 2006 are the
wife and the brother of the deceased Sharma Choudhary, a class
IV employee of the respondent no.6, Canara Bank. According to
the writ petitioners the said Sharma Choudhary died on account of
the atrocities meted to him being a Scheduled Caste person. The
petitioners have, therefore, prayed that the police be directed to
register the offence under Section 3 (2) (v) read with Section 3 (1)
(x) of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 (hereinafter referred to as „the Act of
1989‟) read with Section 302 of the Indian Penal Code; that the
police be directed that the investigation for the offence be made by
a police officer of the rank of the Deputy Superintendent of Police.
The petitioner in C.W.J.C. No. 16407 of 2007 is one
Ambuj Sharma @ Ambuj Kumar Sharma, an accused in Uphara
P.S. Case No. 23/2000 registered for offences punishable under the
Indian Penal Code, Arms Act and under the Act of 1989.
The petitioner in C.W.J.C. No. 15490 of 2008 is a
person accused in Shahpur P.S. Case No. 141 of 2005 registered
for offences punishable under the Indian Penal Code and the Act
of 1989.
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C.W.J.C. No. 18736 of 2008 is filed in public interest
by an organization, namely, Dalit‟s Watch through its Secretary,
Umesh Kumar Kundan.
The impugned Notification has been issued by the
State of Bihar in exercise of power conferred by Section 9(1) of
the Act of 1989 to authorise the officers of the rank of Police
Inspector, Sub Inspector of Police and Assistant Sub Inspector of
Police to investigate the cases filed under the Act of 1989 within
the State of Bihar with effect from 31st March 1995. The impugned
Notification reads as under: -
"In exercise of the powers conferred by
section 9(1) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act,
1989 (No. 33 of 1989) and having regard to the
number of cases filed under this Act, the State Govt.
authorises all the officers of the rank of Police
Inspector, Sub-Inspector of Police and Assistant
Sub-Inspector of Police to investigate the cases filed
under this Act within the State of Bihar with effect
from 31.3.95, the date of coming into force of The
Scheduled Castes and The Scheduled Tribes
(Prevention of Atrocities) Rules, 1995 made under
this Act.
BY ORDER OF THE GOVERNOR OF BIHAR"
The challenge to the Notification is mainly on the
ground that the impugned Notification is violative of Section 9 of
the Act of 1989 and Rule 7 of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Rules, 1995
(hereinafter referred to as „the Rules‟). Another limb of the
challenge is that the impugned Notification is ultra vires in so far
as it is made retrospective with effect from 31st March 1995. The
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Notification is intended to validate the invalid actions of
investigation by an officer below the rank of Deputy
Superintendent of Police. It is also submitted that the impugned
Notification extends beyond the power conferred upon the State
Government to empower any officer of the State Government to
exercise the powers of a police officer of arrest, investigation and
prosecution of the persons before a special court. The relevant
Section 9 of the Act of 1989 and Rule 7 of the Rules read as under:
-
"Section-9. Conferment of Powers.-(1)
Notwithstanding anything contained in the Code or
in 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 coping
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).
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"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 implications of the case and
investigate it alongwith right lines within the
shortest possible time.
(2) The investigating officer so appointed
under sub-rule (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.
It may be noted that Section 9 of the Act of 1989
confers power upon the State Government to empower any
government officer to exercise the power of a police officer by
notification in the Official Gazette. It is, therefore, imperative that
such notification has to be published in the Official Gazette of the
State. Any notification issued in exercise of the said power unless
published in the Official Gazette of the State would not be
effective. In the present case though the impugned Notification
was issued on 3rd June 2002 it was not published in the Official
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Gazette until 9th August 2008. It must, therefore, be held that the
impugned Notification became effective from the date of its
publication in the Official Gazette i.e. on and from 9th August
2008.
The learned Advocates have also argued that the
impugned Notification has been issued without application of
mind i.e. without reference to the circumstances stated in Section 9
of the Act of 1989. In their submission it has not been issued for
prevention or for coping with the offences under the Act of 1989.
If at all necessary, such notification could have been issued in
respect of a district or a part of a district alone and not for the
entire State of Bihar. Further, Section 9 of the Act of 1989
envisages conferment of the power of a police officer of arrest,
investigation and prosecution upon the officers of the government
i.e. government officers other than police officers.
20.1.2011.
Learned advocates, Mr. Amanullah and Mr. Prasoon
Sinha have appeared for the respondent State Government. They
have submitted that the State Government has made the impugned
Notification retrospective in its application. Hence, an
investigation made in respect of the offences punishable under the
Act of 1989 by a police officer empowered under the impugned
Notification, though he may be below the rank of the Deputy
Superintendent of Police stands validated by the impugned
Notification. It is further submitted that in any view of the matter,
until the date of the Rules (i.e. 31st March 1995) there was no
restriction on investigation of offences punishable under the Act of
1989.
Reliance is placed by the learned advocates on the
judgments in the matters of M/s McDowell & Company Ltd. v.
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State of Bihar [2000(3) PLJR 475]; of I.T. Officer, Alleppey v.
M.C. Ponnoose (A.I.R. 1970 S.C. 385); of Kanhaiyalal v. Union
of India [2008 (2) PLJR (SC) 224]; of B.S. Vadera v. Union of
India & Ors. (A.I.R. 1969 S.C. 118); of Sant Bilash Singh v.
State of Bihar [2002(4) PLJR 464]; of State of Haryana v.
Haryana Co-Op. Transport (A.I.R. 1977 S.C. 237); of
Gokaraju Rangaraju v. State of Andhra Pradesh [(1981) 3
SCC 132]; of Anant Sheorey v. State of Bombay (A.I.R. 1958
S.C. 915) and of Union of India v. Sukumar (A.I.R. 1966 S.C.
1206).
We have considered the above referred judgments.
We are unable to agree with any of the aforesaid
arguments. Clause (b) of sub-section (1) of section 9 of the Act of
1989 refers to "any case or class or group of cases"; that
necessarily means that the conferment of powers is not restricted
to prevention of offences alone but also to deal with the offences
already committed. The impugned Notification also refers to the
number of cases filed under the Act of 1989. The said reference
displays active application of mind to the prevailing circumstances
and need for early investigation. The submission, therefore,
deserves to be rejected. The said Sub-section (1) further refers to
"any officer of the State Government". The phrase would also
include a police officer. In our view, nothing in section 9 of the
Act of 1989 restricts the power of the State Government to a
district or a part of a district alone. It does enable the State
Government to exercise the power conferred by the section 9 of
the Act of 1989 in respect of a district or a part of a district, but
that cannot be read to mean that such power cannot be exercised
for the whole of the State.
Section 9 of the Act of 1989 starts with a non-obstante
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clause, "notwithstanding anything contained in the Code or in
any other provision of this Act". In view of the aforesaid non-
obstante clause, the impugned Notification issued in exercise of
the power conferred by section 9(1) the Act of 1989 will have an
overriding effect and can not be held to be ultra vires the said Act.
We do not need an elaborate discussion to say that the rules
framed under an act are part of that enactment. Therefore, the
words "anything contained in the provisions of the Act" will
sweep into its embrace the provisions contained in the Rules also.
We may examine the matter from a different angle. The aforesaid
non-obstante clause in Section 9 of the Act of 1989 gives an
overriding effect to a notification issued by State Government
under that Section over the provisions contained in the Act of
1989. That should include Section 23 of the Act of 1989 and the
Rules made thereunder. The impugned Notification issued in
exercise of the power conferred by Section 9(1) of the Act of 1989,
in any manner cannot be said to be ultra vires the Act of 1989 or
the Rules made thereunder.
The Act of 1989 has been enacted especially for
protection of Scheduled Castes and Scheduled Tribes people from
crimes against them committed by non-Scheduled Castes and non-
Scheduled Tribes people. The Act of 1989 does not restrict the
investigation of such crimes by a particular police officer or a
particular class of police officers. In other words, any police
officer empowered under the Code of Criminal Procedure to
investigate a crime or lodge a prosecution was competent to make
arrest, investigate or lodge prosecution in respect of the crime
punishable under the Act of 1989. However, by the Rules framed
under sub-section (1) of Section 23 of the Act of 1989 published in
the Gazette of India on 31st March 1995 a restriction was imposed
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in respect of investigation of offences committed under the Act of
1989. Under Rule 7 of the Rules the police officers not below the
rank of Deputy Superintendent of Police alone are empowered to
investigate a crime punishable under the Act of 1989. In other
words, by necessary implication, the police officers lower in rank
than a Deputy Superintendent of Police are debarred from
investigating such crimes. The necessary consequence would be
that the investigation made in respect of such crime by a police
officer lower in rank than the Deputy Superintendent of Police
after the date of the Rules i.e. on and from 31st March 1995 is
unauthorized and is invalid. A prosecution lodged consequent to
such investigation would fail. It is apparent that with a view to
validating such invalid investigation and consequent unauthorized
prosecution the Government of Bihar has issued the impugned
Notification empowering the police officers below the rank of
Deputy Superintendent of Police such as Police Inspector, Sub-
Inspector of Police and Assistant Sub Inspector of Police to
investigate the crimes punishable under the Act of 1989 effective
from 31st March 1995.
There is no gainsaying that the Parliament or a State
Legislature has power to enact laws and also to specify the date
from which such law shall become applicable. The operation of
such law may be made retrospective by an express provision or by
necessary implication. But how far such law can be made
retrospective in operation has to be decided in the context of the
matter. In our view, the impugned Notification in so far as it
confers power of investigation upon the police officers below the
rank of the Deputy Superintendent of Police is valid. Its operation
with retrospective effect is also valid to the extent that any offence
committed prior to the date of the impugned Notification can, after
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the date of the impugned Notification, be investigated by a police
officer who has been vested with the power of investigation
though he may be of the rank below the rank of the Deputy
Superintendent of Police. But to accept the argument advanced by
the learned advocates Mr. Amanullah and Mr. Sinha would
amount to validating the acts which were unauthorized and invalid
from inception. In other words, if an investigation in such crime
has been made by a police officer below the rank of the Deputy
Superintendent of Police prior to the date of the publication of the
impugned Notification, such investigation and consequent
prosecution which were otherwise invalid cannot stand validated
by the impugned Notification.
We are fortified in our above view by the judgment of
the Hon‟ble Supreme Court in the matter of I.T. Officer, Alleppey
v. M.C. Ponnoose (supra). In that matter in exercise of power
conferred by Section 2(44) (ii) of the Income Tax Act, 1961, as it
stood amended by the Finance Act, 1963, by a Notification issued
on 14th August 1963 a Tehsildar in the State of Kerala was vested
with the powers of a Recovery Officer with effect from 1st April
1962. The said Notification was published in the Official Gazette
on 20th August 1963. The action of tax recovery by the Tehsildar
after 1st April 1962 but prior to 14th August 1963 was held to be
invalid.
For the aforesaid reasons, we declare that the
impugned Notification dated 3rd June 2002 is not ultra vires the
Act of 1989 or the Rules made thereunder. It is further declared
that the impugned Notification dated 3rd June 2002 has become
effective from the date of its publication in the Official Gazette of
the State of Bihar i.e. on and from 9th August 2008. Investigation
and consequent prosecution lodged by a police officer empowered
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under the impugned Notification, though lower in the rank than a
Deputy Superintendent of Police, on or after 9th August 2008 will
be valid although the offence in question may have been
committed prior to 9th August 2008. It is further declared that the
investigation made by a police officer below the rank of a Deputy
Superintendent of Police after the date of the Rules, i.e. 31st March
1995 and prior to 9th August 2008 and consequent prosecution will
not stand validated by the impugned Notification dated 3rd June
2002 published on 9th August 2008.
C.W.J.C. Nos. 16407 of 2007; 15490 of 2008 and
18736 of 2008 are disposed of in the above terms.
The parties will bear their own cost.
The challenge to the validity of the impugned
Notification in C.W.J.C. No. 7489 of 2006 stands answered in the
above terms. In respect of the other issues raised in the petition the
matter will be placed before the learned single Judge according to
the roster.
Learned advocate Mr. R.K. Rajan has appeared for the
petitioners in C.W.J.C. No. 7489 of 2006. He requests that leave to
appeal before the Supreme Court be granted under Article 134-A
of the Constitution. Leave is refused.
He further requests that implementation of this order
be stayed for a period of 60 days. The request is rejected.
(R.M. Doshit, CJ)
(Jyoti Saran, J)
Patna High Court
Dated the 20th January 2011
AFR/Pawan/-