Chandrashekhar Narayan Joshi vs State Of Maharashtra
2003 Latest Caselaw 1115 Bom

JUDGMENT

D. D. Sinha, J.

1. Heard Mr. Joshi, learned counsel for the applicant and Mr. Mirza, learned Additional Public Prosecutor for the respondents-State.

2. Criminal Revision Application is directed against the impugned order, dated 1-4-2000, passed by Sessions Judge, Wardha, below Exhibits-7 and 14 in Special Case No. 27 of 1995, whereby the application moved by the applicant for discharge from the offence punishable under Section 3(i)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is rejected.

The prosecution case, in nutshell, is as follows :--

3. The applicant-accused Chandrashekhar was working as a Deputy Manager in Bank of India, Branch at Wardha. The prosecutrix Meerabai was working as a Sweeper-cum-Peon. Oft 9th September, 1993, the applicant-accused Chandrashekhar was alone in the office. At that time, prosecutrix Meerabai was standing along at the main gate of the Bank hall. The accused then called her and scolded her for not cleaning his table properly. On the day of incident, there was a strike by employees of the Bank. The prosecutrix Meerabi entered the office of the accused for cleaning the table etc. At that time, the accused-applicant Chandrashekhar had pressed her breasts and thereby outraged the modesty of Meerabai. The prosecutrix thereafter lodged a complaint in the Police Station, Wardha, on 23-9-1993. On completion of investigation, charge-sheet was filed by the prosecution on 19-4-1995 for the offence punishable under Section 3(i)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act", for short) as well as for the offence punishable under Section 354 of Indian Penal Code.

4. The applicant moved an application for discharge from the offence punishable under the Atrocities Act on many grounds. However, the main ground, which was canvassed before the Court below, is that the investigation into the crime punishable under the provisions of Atrocities Act is required to be carried out by the designated officer of the rank of a Deputy Superintendent of Police as contemplated under Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred as "the Atrocities Rules", for brevity). It is the contention of the applicant that investigation in the present crime is not carried out by the officer specially empowered or designated for conducting the investigation as per Rule 7 of the Atrocities Rules and, therefore, the whole investigation is vitiated and the applicant is entitled for discharge so far as the offence punishable under the Atrocities Act is concerned.

5. Learned counsel for the applicant contended that in the instant case, complaint is lodged by the prosecutrix Meerabai in Wardha Police Station on 23rd September, 1993. However, the report of police officer on completion of investigation is filed before the Special Court on 19-4-1995 in the form of a charge-sheet. It is contended that Rule 7 of the Atrocities Rules came into force on 31st March, 1995 and as per this Rule, the offences under the Atrocities Act are required to be investigated by a police officer not below the rank of a Deputy Superintendent of Police, who shall be appointed by the State Government, after taking into account his past experience, sense of ability etc. It is further contended that Sub-rule (2) of Rule 7 contemplates that the investigating officer so appointed under Sub-rule (1) is required to complete the investigations into the offences under the Atrocities Act 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.

6. Mr. Joshi, learned counsel for the applicant, states that after 31-3-1995, it was mandatory for the State to appoint an investigating officer not below the rank of a Deputy Superintendent of Police as contemplated under Sub-rule (1) of Rule 7 of the Atrocities Rules, and in the instant case, since the investigation on that date was not completed, the prosecution ought to have followed the procedures for investigation contemplated under Sub-rule (1) as well as Sub-rule (2) of Rule 7 of the Atrocities Rules. Since investigation in the instant case is conducted not by an authorized officer contemplated under Sub-rule (1) of Rule 7 of the Atrocities Rules, the entire investigation carried out by the prosecution, in the present case, is vitiated. Consequently, the applicant is entitled to be discharged from the offence punishable under the provisions of Atrocities Act. It is submitted that Rule 7 of the Atrocities Rules is mandatory in nature and failure to conduct investigation as per the procedure contemplated under this Rule results in vitiating the said investigation. In order to substantiate this contention, reliance is placed on the judgment of this Court in case of Ramnath Sadashiv Koltharkar v. State of Maharashtra reported in 1999(2) Mh.LJ. 743. It is contended that the Special Court completely erred in rejecting the application for discharge and, therefore, the order impugned needs to be set aside.

7. Mr. Mirza, learned Additional Public Prosecutor, on the other hand, contended that in the present case the complaint was filed by the prosecutrix Meerabai on 23rd September, 1993 and on the basis of the said complaint crime is registered against the applicant-accused and investigation was commenced. It is contended that prior to coming into force the Atrocities Rules, there was no such requirement that the crime under the Atrocities Act should be investigated by a particular officer not below the rank of a Deputy Superintendent of Police and, therefore, the investigation is carried out as per the provisions of Criminal Procedure Code and the Assistant Sub-Inspector of Police was competent to conduct the investigation in question. It is submitted that the Atrocities Rules came into force on 31-3-1995 and are prospective in operation and, therefore, these Rules cannot be applied retrospectively to the investigation of the crime under the Atrocities Act, which was commenced prior to 1995.

8. The Additional Public Prosecutor submitted that the investigation in the present crime was almost complete before coming into force the Atrocities Rules and, therefore, merely because the charge-sheet is filed in the present crime before the Special Court on 19-4-1995, i.e., after coming into force the Atrocities Rules, it cannot be concluded that investigation in the present crime was not completed before coming into force the Atrocities Rules. The Additional Public Prosecutor, therefore, supported the impugned order passed by the Special Court.

9. I have given my anxious thought to the above referred contentions canvassed by the respective counsel and perused the impugned order passed by the Special Court as well as the reported Judgment of this Court as referred to hereinabove.

10. In order to appreciate the controversy in issue, following undisputed facts need to be considered :--

 (a)     In the instant case, the prosecutrix lodged a complaint in Wardha Police Station on 23-9-1993. 
 

 (b)    The Atrocities Rules came into force on 31st March, 1995. 
 

 (c)     The charge-sheet is filed by the prosecution in the Special Court against the applicant for the offence punishable under the Atrocities Act on 19th April, 1995.  
 

On the backdrop of the above referred undisputed facts, it is evident that on the date on which the Atrocities Rules came into force, the investigation was in progress and the same was not completed. It is well settled that investigation into a crime stands completed on submission of a report by the Police Officer under Section 173, Criminal Procedure Code, which is in the form of a charge-sheet and till then it cannot be presumed that merely because investigation was in progress for quite sometime in past, it must have been completed before filing of the charge-sheet or submission of a final report under section 173, Criminal Procedure Code.

11. It is, no doubt, true that when the Legislature intends to make a particular legislation retrospectively applicable, in that case there is a specific mention in this regard in the legislation itself and in absence thereof it is not possible to hold that such legislation is retrospectively applicable unless there are adequate reasons for the same. Hence Rule 7 of the Atrocities Rules is, undoubtedly, prospective in nature and the procedure contemplated under this Rule has come into force on 31st March, 1995 and the prosecution from that day is required to conduct the investigations into the offences punishable under the Atrocities Act as per the procedure contemplated in Rule 7 of the Atrocities Rules. Sub-rule (1) of Rule 7 of the Atrocities Rules mandates that the investigation in respect of the crime under the Atrocities Act is required to be conducted by a police officer not below the rank of a Deputy Superintendent of Police, who is specifically appointed by the State Government for this purpose as per Sub-rule (1) of Rule 7 of the Atrocities Rules, which means that from 31-3-1995, all investigations in respect of the offences under the Atrocities Act as required to be conducted as per the procedure contemplated under Rule 7 of the Atrocities Rules and any deviation from such procedure by the State would result in vitiating such investigation, since the same is inconsistent with the procedure contemplated under Rule 7 of the Atrocities Rules.

12. The procedure evolved by the Legislature under Rule 7 is with an object to eliminate misuse of stringent provisions of the Atrocities Act and, therefore, Legislature intended that offences under the Atrocities Act should be investigated by a senior responsible officer like the Deputy Superintendent of Police, who is specially appointed for this purpose by the State taking into consideration his past experience, sense of ability etc. This Court in the case of Ramnath Sadashiv Koltharkar (supra) has already held that Rule 7 of the Atrocities Rules is mandatory in nature and, therefore, the prosecution is duty bound to follow the procedure of investigation contemplated under Rule 7 of the Atrocities Rules and any deviation in this regard by the investigating agency, undoubtedly, would result in vitiating such investigation, since it is de hors of the procedure contemplated under Rule 7 of the Atrocities Rules.

13. The contention canvassed by learned Additional Public Prosecutor that investigation into the crime in question undertaken in the year 1993 was completed before filing of charge-sheet and before coming into force the Atrocities Rules is misconceived and devoid of substance. It is well settled that investigation would always be treated to be complete only on filing of a final report of completion of such investigation under Section 173, Criminal Procedure Code, which is in the form of a charge-sheet. In the instant case, charge-sheet is filed in the Special Court on 19-4-1995, i.e., undoubtedly, after the Atrocities Rules came into force, and from 31-3-1995, namely the date on which Atrocities Rules came into force, the prosecution cannot file a charge-sheet against the accused in respect of the offences under the Atrocities Act on the basis of investigation which is inconsistent with the procedure contemplated under Rule 7 of the Atrocities Rules. In the instant case, investigation conducted by the prosecution prior to 31-3-1995 would not be valid after 31-3-1995 and the prosecution was under a statutory obligation to conduct the investigation on or after 31-3-1995 as per the procedure contemplated under Rule 7 of the Atrocities Rules.

14. In the instant case, there is no question of giving retrospective effect to Rule 7 of the Atrocities Rules, since the procedure for investigation provided under Rule 7 of the Atrocities Rules in respect of the crimes/offences committed under the Atrocities Act is required to be followed by the prosecution on or after 31-5-1995. Similarly, it is evident that Rule 7 of the Atrocities Rules would also apply to the investigation which is commenced prior to 31-3-1995 and was in progress on 31-3-1995. The Rule is, undoubtedly, prospective in nature and, therefore, from 31-3-1995, the prosecution will have to conduct a fresh investigation as per the procedure contemplated under Rule 7 and any investigation done by the prosecution prior to 31-3-1995 would be invalid and charge-sheet can only be filed on the basis of investigation conducted by the prosecution as per procedure under Rule 7. In the instant case, the provision of Rule 7 is applied only prospectively. Hence the contention canvassed by the Additional Public Prosecutor in this regard is devoid of substance. Similarly, if the charge-sheet is filed in the crime committed under the Atrocities Act before coming into force the Atrocities Rules, in that event the provisions of Rule 7 are not attracted, since investigation is concluded prior to coming into force of these Rules and, therefore, the Rule is prospective in nature and in the instant case there is no question of applying it retrospectively. Hence the contention canvassed by the Additional Public Prosecutor in this regard is devoid of substance.

15. The learned Judge of the Special Court completely failed to take into account these vital aspects of the matter and has unnecessarily given weightage to the provisions of General Clauses Act which, in my view, have a very little relevance in respect of the issue in question.

16. In the instant case, on the backdrop of the above referred legal proposition of law, the investigation, which is carried out by the prosecution into the crime in question being de hors the procedure contemplated under Rule 7 of the Atrocities Rules, vitiates the entire investigation and, therefore, the charge-sheet filed by the prosecution against the applicant for the offence under Section 3(i)(xi) of the Atrocities Act on the basis of such incompetent investigation cannot be sustained in law.

For the reasons stated hereinabove, the impugned order is quashed and set aside. The applicant is discharged so far as the offence under Section 3(i)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned and the proceedings initiated vide Special Case No. 27 of 1995 under the Atrocities Act against the applicant are also quashed and set aside. So far as the offence punishable under Section 354 of Indian Penal Code is concerned, the same needs to be tried by the competent Criminal Court. Revision is allowed in above terms.