Lalji Gupta vs State Of U.P. And Others
2018 Latest Caselaw 3011 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 53								A.F.R.
 

 
Case :- APPLICATION U/S 482 No. - 8038 of 2004
 

 
Applicant :- Lalji Gupta
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble J.J. Munir,J.

1. This is an application under Section 482 Cr.P.C. seeking to quash proceedings of Sessions Trial no.260 of 1998, State vs. Lalji Gupta (arising out of Case Crime no.307 of 1995), under Sections 323, 504, 506 IPC and Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the 'Act'), Police Station Kerakat, District Jaunpur, pending in the court of Special Judge/ Sessions Judge-II, Jaunpur.

2. Heard Sri Manish Tiwari, learned counsel for the applicant and Sri J.B. Singh, learned A.G.A. on behalf of the State.

3. The sole ground on which challenge is laid to the impugned proceedings pending before the Special Judge is that investigation in the present case was done by a police officer of the rank of Sub-Inspector who is not competent under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, and, hereinafter referred to as the 'Rules', to investigate an offence under the Act. As such, the police report filed by him on the basis of which cognizance has been taken by the learned Special Judge, is a nullity. It is argued that the defect is one that goes to the root of the matter, rendering the charge sheet a nullity in law. In this connection learned counsel for the applicant has referred to the provisions of Rule 7 of the Rules, that read:-

"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 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."

4. It is pointed out by Sri Tiwari that the matter was raised before the Trial Court, through an application dated 07.07.2004, but the same was rejected by an order dated 05.08.2004, without the court below bestowing any serious consideration to this issue of cardinal importance. The moot question that falls for consideration in the present case is: what will be the effect and consequence of investigation by a police officer, below the rank of a Deputy Superintendent of Police, in breach of Rule 7 of the Rules, on the validity proceedings instituted in Court?

5. Admittedly, the present First Information Report was registered on 15.09.1995 as Case Crime no.307 of 1995, under Sections 323, 504, 506 IPC and Section 3(1)(x) of the Act, with the allegations that on 02.09.1995 the Village Pradhan, Lalji Gupta (the applicant) connived with certain others and got the informant's hut (Madai) set ablaze; that the aforesaid mischief by fire was caused to be done by the applicant as a measure of reprisal for the informant not supporting the applicant in elections to the office of the Village Pradhan, that he won; that the resultant fire caused substantial loss to the informant and he went over to the Police Station to report the matter, where the applicant (the then Village Pradhan) was present; that it is further said by the informant that the parties were mediated to a settlement, on terms and conditions that the applicant would get compensated the informant for the loss sustained, by those who caused damage by fire, and, in case, the perpetrators did not make good the loss, the applicant would compensate in their stead; that it is further said in the First Information Report that the applicant went away home accepting the terms, as he is a very poor man with no support; that on 10.09.1995 in the morning hours at 9.30 of the clock, when the informant went over to the house of the applicant, he found him there and asked him to act in terms of the compromise to compensate the informant, for the loss sustained; that upon hearing that, the applicant abused the informant in vulgar words, saying "pekj okys vc rd rqe nhokuh ?kwers jgsA vc lkys vius uqdlku dk iSlk ekaxus vk;s gks"; that saying so, the applicant picked up a stick (lathi) that he had in his hand, and, assaulted the informant, leading to injuries to his right hand and to his chest; that the informant burst into tears, whereupon the applicant told him to get lost, else he would be done to death; that it is also said that the informant noticed, that some of the men present there watching T.V. were responsible for the incendiarism; that the informant out of fear, ran of towards his house, and, on way met Durga Prasad Gupta, to whom he narrated what had befallen him; that, thereafter, the informant who was in great pain, did not straightway go to the police station but to the Sadar Hospital, Jaunpur, where he had his injuries examined, and, then came over to report the matter to the police; and, that with so much said, the informant requested for registration of a case and investigation in accordance with law.

6. A counter affidavit has been filed on behalf of the State way back on 3rd February, 2005, being an affidavit dated 15.01.2005. A perusal of the same shows that it is nowhere denied, for a fact, that the case was not investigated by an officer of the rank of a Sub-Inspector but by an officer of the rank of the Deputy Superintendent of Police, on whom powers have been conferred by the State Government, by notification in the official gazette, to investigate the present case or class or group of cases, under the Act. It is nowhere denied for a fact that a Deputy Superintendent of Police did not investigate the matter, but a Sub-Inspector investigated it, and, also filed a charge sheet. A perusal of the charge sheet, a true copy of which is annexed as Annexure 2 to the affidavit, in support of the present application shows, that not only was the case investigated by a Sub-Inspector, but the charge sheet too, was filed by a Sub-Inspector, in all probability the one who investigated, on 14.10.1995. There is no cavil about the fact that the case was investigated by a police officer of the rank of a Sub-Inspector, who also filed the charge sheet, on the basis of which cognizance was taken by the Special Judge, giving rise to the impugned proceedings. The said question fell for consideration of their Lordships of the Supreme Court in State of M.P. vs. Chunni Lal alias Chunni Singh, 2009(12) SCC 649, where it has been held thus:

"By virtue of its enabling power it is the duty and responsibility of the State Government to issue notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of Police for different areas in the police districts. Rule 7 of the Rules provided rank of investigation officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer.

8. The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read lead to an irresistible conclusion that the investigation to an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid. But when the offence complained are both under the IPC and any of the offence enumerated in Section 3 of the Act the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non investigation of the offence under Section 3 of the Act by a competent police officer. In such a situation the proceedings shall proceed in appropriate Court for the offences punishable under the IPC notwithstanding investigation and the charge sheet being not liable to be accepted only in respect of offence under Section 3 of the Act for taking cognizance of that offence.

9. In the present case there is no denial of the fact that the accusations related to offences under both the Act and the I.P.C. The High Court was therefore not justified in quashing the entire proceedings. The order shall be restricted to the offence under Section 3 of the Act and not in respect of offences punishable under the IPC. "

7. Following the decision of their Lordships in State of M.P. vs. Chunni Lal (supra) this Court in Jwahir Sharma and another vs. State of U.P. and another 2010, Cri LJ 1528 held:

"7. As would appear from Rule 7 of the Rules, investigation for the offences punishable under SC/ST Act can be made by a police officer not below the rank of Deputy Superintendent of Police and investigation of an offence under this Act made by an Officer not appointed in terms of Rule 7 is illegal and invalid. This matter has been considered by the Hon'ble Apex Court recently in the case of State of M.P. v. Chunni Lal alias Chunni Singh; 2009(65) ACC 652: (2009 AIR SCW 5335). In that case also, charge-sheet under certain sections of Indian Penal Code and Section 3(1)(X) SC/ST Act was filed on the basis of the investigation, which was carried out by a police officer, who was not authorized to make investigation in terms of Rule 7 of the Rules. On the matter being challenged by the accused persons, the High Court of Madhya Pradesh had quashed the entire proceedings against the accused persons. State of Madhya Pradesh preferred appeal before the Hon'ble Apex Court. After making reference of Section 9 of SC/ST Act and Rule 7 of the Rules, the Hon'ble Apex Court has held that trial of the accused under Section 3 of SC/ST Act can not proceed, but trial may be made for the offences under Indian Penal Code. ..........."

8. A similar question arose much earlier before the Orissa High Court in Chandra Sekhar Pani and others vs. State of Orissa, 2004 Cri LJ 2626, where the same issue was dealt with thus:

"16. ................ The earlier decisions to which reference has been made in the case of Prakash P. Hinduja have also been taken into consideration by the Apex Court in the case of Ch. Bhajan Lal. So far as the case of Prakash P. Hinduja is concerned, there is no dispute that the question of violation of any statutory rule was not the subject matter of discussion, whereas in the present case the question raised is whether violation of a statutory provision shall vitiate the trial which is based on investigation made by an officer who is not competent to do so. The Apex Court in the case of Ch Bhajan Lal not only took into consideration the earlier decisions referred to in the case of Prakash P. Hinduja but also took a view contrary to what had been decided in the case of H.N. Rishbud & Inder Singh (supra). Rule 7 of the Rules not only provides that an offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police, but also it provides that such 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. The provision clearly indicates the intention of the Legislature to get the offence committed under the Act, investigated by an officer who is not only experienced but also has sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. .............."

18. Keeping in mind the discussions made above, I am of the view that violation/contravention of Rule 7 of the Rules will entail an investigation illegal and shall vitiate trial. Therefore, cognizance taken on the basis of charge-sheet submitted by an officer not competent to investigate a case under the Act has to be quashed and direction has to be issued for reinvestigation by a competent officer. .......... "

9. There appears, thus, no dispute about the law that a Sub-Inspector of Police is not competent to investigate an offence under the Act, and, further that an officer to be competent to investigate an offence under the Act, has to be specifically conferred powers in that behalf by the State Government, in accordance with Section 9 of the Act. Those powers cannot be conferred on an officer, below the rank of a Deputy Superintendent of Police, as required by Rule 7 of the Rules. In the present case there is no dispute on facts also, that the investigation leading to the impugned proceedings was carried out by a Sub-Inspector, and, the charge sheet too was filed by a Sub-Inspector, and, not by a Deputy Superintendent of Police.

10. In this view of the matter and the legal position above adumbrated, this Court comes to the conclusion that the impugned proceedings, so far these relate to the offence under Section 3(1)(X) of the Act, pending before the Special Judge (SC/ST Act) as Sessions Trial no.260 of 1998 are vitiated, and, cannot continue. However, by dint of authorities noticed hereinbefore, the proceedings under Section 323, 504, 506 IPC, that relate to offences which a Sub-Inspector could investigate, can continue before the competent court, in such manner as the law may permit.

11. This Court has noticed that in the decision of this Court in Jwahir Sharma (supra), a direction was given that the proceedings under the Penal Code that have been competently investigated and are triable by the Magistrate, may be transferred to the Chief Judicial Magistrate as provided under Section 228 Cr.P.C. This Court has reservations that a Special Judge seized of proceedings, under the SC/ST (Prevention of Atrocities) Act, is competent to transfer a case to a Magistrate under Section 228 Cr.P.C., once he finds that the offences exclusively triable by him, are not made out. This is so because the learned Special Judge is not a court of Sessions to whom the case is committed by the Magistrate, or one to whom the provisions of Section 228 Cr.P.C. apply, as part of an integrated scheme under the Code of Criminal Procedure that exclusively deal with a court of a Magistrate and a court of Sessions, functioning under the Code. However, the said question is being left open since the same has not been raised or argued by the parties.

12. In the result this Application succeeds and is allowed in part. The proceedings of Sessions Trial no.260 of 1998, State vs. Lalji Gupta (arising out of Case Crime no.307 of 1995), under Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kerakat, District Jaunpur, pending in the court of Special Judge/ Sessions Judge-II, Jaunpur are hereby quashed. Proceedings in relation to offences under Sections 323, 504, 506 IPC would, however, continue before the competent court, and, in such manner as may be permissible under the law.

Order Date :- 3.10.2018

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