Allahabad High Court
Shammi vs State Of U.P. on 23 May, 2013
Bench: Aditya Nath Mittal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 12
Case :- CRIMINAL REVISION No. - 1728 of 2010
Petitioner :- Shammi
Respondent :- State Of U.P.
Petitioner Counsel :- Raghuraj Kishore
Respondent Counsel :- Govt. Advocate
Hon'ble Aditya Nath Mittal, J.
Heard Sri S.M. Abbas, learned counsel for the revisionist, learned AGA and perused the record.
This criminal revision has been filed against order dated 5.2.2010 passed by Fast Track Court No.1 District Saharanpur in Sessions Trial No.707 of 2006 under Sections 323, 324, 504, 506 IPC and Section 3(1)10 SC ST Act.
Learned counsel for the revisionist has submitted that as per provisions of Rule 7 of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, the offence committed under this Rules shall be investigated by a police officer not below the rank of Deputy Superintendent of Police. It has further been submitted that in the present matter the investigation has been done by a Senior Sub Inspector who had no jurisdiction to do the investigation therefore, the impugned order is against the law.
Learned AGA has defended the impugned order.
Section 7 of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Rule, 1995, provides as under :-
"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 pass 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 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."
Perusal of the aforesaid Rules reveals that the investigating officer may be appointed by the State Government, Director General of police or the Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case. Perusal of the impugned order reveals that previously also the accused persons had moved an application 160-Kha on 6.1.2010. It has also been mentioned in the impugned order that initially the investigation was started by Deputy Superintendent of Police but after referring the Government Order, the investigation was transferred to Senior Sub Inspector Chanya Swaroop after which it was transferred to Sub Inspector Mahendra. The charge sheet was submitted on 16.3.2006. The Government Order clarifies the position that the investigation under Scheduled Caste and Scheduled Tribes Act may be done by a police officer of the rank of Sub Inspector. Furthermore, it was relevant that the accused persons who had moved an application for discharge were summoned under Section 319 Cr.P.C. because they were not arrayed as accused persons on the basis of charge sheet filed by the investigating officers. The order under Section 319 Cr.P.C. was challenged before this Court in Criminal Revision No.3350 of 2008 which was rejected and at that time no such objection of Rule 7 was taken therefore, the order passed under Section 319 Cr.P.C. has become final. After it the statements of two witnesses were also recorded and the application 160-Kha was rejected on the merits. Therefore, I am in agreement with the findings of learned trial Court that the Sessions Judge had no jurisdiction to review its own order.
Furthermore, Hon'ble the Apex Court in State of M.P. and others Vs. Ram Singh AIR 2000 SC 870, State Inspector of Police Vs. Surya Sankaram Karri MANU/SC/8834/2006 and State of M.P. Vs. Ramesh Chandra Sharma MANU/SC/2574/2005 has held that a defect or illegality in the investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial.
In the State of M.P. Vs. Ramesh Chandra Sharam (supra), Hon'ble the Apex Court has held as under :-
"The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises."
Hon'ble the Apex Court has further held as under:-
"The Court after referring to Parbhu v. Emperor MANU/PR/0035/1944 : AIR 1944 PC 73: 46 Cri LJ 119 and Lumbhardar Zutshi v. R AIR 1950 PC 26: 51 Cri LJ 644, held that if cognizance is in fact taken on a police report initiated by the breach of a 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 the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. This being the legal position, even assuming for the sake of argument that C.B.I. committed an error or irregularity in submitting the charge-sheet without the approval of C.V.C., the cognizance taken by the learned Special Judge on the basis of such a charge-sheet could not be set aside nor could further proceedings in pursuance thereof be quashed. The High Court has clearly erred in setting aside the order of the learned special Judge taking cognizance of the offence and in quashing further proceedings of the case."
In the present case, it is also relevant to mention that the accused persons are facing trial on the basis of their summoning under Section 319 Cr.P.C. and not on the basis of charge-sheet submitted by the investigating officer. No gross injustice or violation has been proved while the first application has already been rejected on merits, the subsequent application on the same grounds was also not maintainable.
For the facts and circumstances mentioned above, I do not find any error of law or perversity in the impugned order.
The revision is dismissed.
Order Date :- 23.5.2013
Hasnain
