Jharkhand High Court
Kadir Mian @ Kadir Ali vs The State Of Jharkhand on 18 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1053 of 2004
(Against the judgment of conviction and order of sentence dated
22.06.2004, passed by the learned Ist Additional Sessions Judge cum
Special Judge, Gumla, in G.R. Case No. 1 of 1997.)
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Kadir Mian @ Kadir Ali ..... Appellant
Versus
The State of Jharkhand ..... Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellants : Mr. Amit Choubey, Adv.
For the State : Mr. Rajiv Kumar, APP
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09/Dated: 18th August, 2023
Heard learned counsel for the parties.
2. This appeal is directed against the judgment of
conviction and order of sentence dated 22.06.2004, passed
by the learned 1st Additional Sessions Judge cum Special
Judge, Gumla, in G.R. Case No. 1 of 1997; whereby the
appellant was convicted for the offence punishable under
section 3(1) (xii) and 3(i) (x) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act 1989 and
sentenced to undergo R.I. for 4 years and a fine of Rs.
2000/- and in default of payment of fine within one month
from the date of judgment, further to undergo S.I for 6
months, which will run consecutively. The fine so deposited
will be given to the complainant.
3. The prosecution case in brief is that the complainant
is a poor unmarried Adiwasi girl and due to physical
relationship with the appellant she became pregnant. The
complainant requested the appellant to marry her but he
refused and also threatened to kill her if she will not
terminate her pregnancy for which a case under section
376 IPC was registered against the appellant.
4. Learned counsel for the appellant draws attention of
this court towards Rule 7 of S.T. & S.C. Act, 1989 and
submits that as per the said rule, the investigating officer
has to be any police officer not below the rank of Deputy
Superintendent of Police; whereas in the instant case, the
Investigating Officer was Sub Inspector of Police, as such
on this score alone the conviction is bad in law.
Learned counsel further draws attention towards the
deposition of P.W.5, who was sister of the victim, who had
admitted in para 13 that the case was filed because the
appellant refused to solemnized marriage with the victim
girl. Relying upon this statement of P.W.5 he contended
that the love between the parties was apparent and in no
case, it can be stated to be a case of Section 3(1) (XII) 3 (i)
(X) of the S.C. & S.T. Act, 1989. Relying upon the aforesaid
two grounds learned counsel prays for acquittal of this
appellant.
5. Per contra, learned Addl. P.P. supports the impugned
judgment and submits that there were several occasions
when due to scarcity of officers, Rule-7 was diluted and the
Sub-Inspectors were given the power to investigate the
case, in spite of the fact that they were below the rank of
Deputy Superintendent of Police. However, he fairly
submits that the instant application is of the year 1997 and
at that time whether the State of Bihar has issued any
notification to that effect or not, is not available with the
counsel.
He further submits that merely on the ground that
they were having love affair the allegation under S.T. & S.C.
Act cannot be ignored, as such the instant application
deserves to be dismissed.
6. Having heard learned counsel for the parties and
after going through the documents available on LCR and
Rule 7 of S.C. and S.T. Prevention of Atrocities Act, 1995, it
appears that Rule 7 of the aforesaid rule categorically states
that no police officer below the rank of Deputy
Superintendent of Police shall be the investigating officer of
any case committed under the Act.
For brevity Rule 7 is quoted hereinbelow: -
"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 implication 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, submit
the report to the Superintendent of Police, who in turn shall
immediately forward the report to the Director General of
Police of Commissioner of Police of the State Government,
and the officer in-charge of the concerned police station
shall file the charge sheet in the Special Court or the
Exclusive Special Court within a period of sixty days (the
period is inclusive of investigation and filing a charge-
sheet).
(2-A) The delay, if any, in investigation or filing of charge-
sheet in accordance with sub-rule (2) shall be explained in
writing by the investigating officer.]
(3) The Secretary, Home Department and the Secretary,
Scheduled Castes and Scheduled Tribes Development
Department (the name of the Department may vary from
State to State) of the State Government or Union territory
Administration, Director General of Police or the
Commissioner of Police in-charge of the concerned State or
Union territory shall review by the end of every quarter the
position of all investigations done by the investigating
officer."
7. The Respondent-State contended that previously on
number of occasions this rule was relaxed due to over
pressure of criminal cases. During course of hearing, he
also referred to notification dated 24.11.2012 and
10.07.2018. However, he could not produce any notification
to that effect i.e., relaxation of Rule 7 at that relevant
period.
Thus, due to non-compliance of Rule 7 by the
prosecution, the appellant deserves acquittal.
8. Even on merits of the case, it is evident that the
sister of the victim has categorically admitted in para 13
that if the appellant would have married her sister; no case
would have been filed against him. It is further evident from
para 21 and 22 of P.W.7, who is mother of the victim, that
the appellant was desirous to marry the victim, however,
the parents were not ready. As a matter of fact, a case
under section 376 IPC was also lodged against this
appellant as Gumla P.S.Case No. 59 of 1996 and this
appellant was acquitted in the said S.T. Case No. 32 of
2000. This clearly goes to show that the instant case has
been filed with malice and the statement of the victim
appears to be none trustworthy.
9. Having regard to the aforesaid discussions, the
judgment of conviction and order of sentence, both dated
22.06.2004, passed by the learned 1st Additional Sessions
Judge cum Special Judge, Gumla, in G.R. Case No. 1 of
1997, is hereby, set aside. As a result, the instant
application stands allowed.
10. The appellant shall be discharged from the liability of
his bail bond.
11. Let the lower court record be sent to the court
concerned forthwith.
(Deepak Roshan, J.)
Amardeep/
