Orissa High Court
Chhabindra Kumar Malla @ vs State Of Orissa on 20 May, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.143 of 2001
In the matter of an Appeal under Section 374(2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 30th June, 2001 passed by the learned
Additional Sessions Judge-Cum-Special Judge, Jagatsinghpur in
Special G.R. Case No.10 of 1999.
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Chhabindra Kumar Malla @ .... Appellant
Chhabi
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.D. Nayak, Sr. Advocate
Mr.P.C.Mishra, S. Swain,
P.K. Mishra, B. Rout,
B.K. Das & S. Das
(Advocates)
For Respondent - Mr.P.K. Mohanty
Additional Standing Counsel
CORAM
MR. JUSTICE D.DASH
Date of Hearing : 16.05.2024 : Date of Judgment : 20.05.2024
D.Dash,J. The Appellant, by filing this Appeal, has called in question
the judgment of conviction and order of sentence dated 30th June,
2001 passed by the learned Additional Sessions Judge-Cum-
Special Judge, Jagatsinghpur in Special G.R. Case No.10 of 1999.
By the impugned the judgment of conviction and order of
sentence, the Appellant (accused) has been convicted for
commission of the offence under section 3(x) of the 2(1)(x) of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)
Act, 1989 (for short, the SC & ST (POA) Act). Accordingly, he has
been sentenced to undergo rigorous imprisonment for six (6)
months and pay fine of Rs.100/- (Rupees One Hundred) in default
to undergo rigorous imprisonment for ten (10) days.
2. The Appellant stood charged for commission of the offence
under section 341/294/506/427 of the IPC read with section 2(1)(x)
of the SC & ST (POA) Act and has been acquitted of the charges
for all those sections under the IPC.
3. Learned counsel for the Appellant (accused), before going
to attack the finding of guilt against the accused, as has been
returned by the Trial Court, submitted that the investigation of
the case involved the offence under SC & ST (POA) Act, having
been made by the Assistant Sub-Inspector (A.S.I.) of Police
attached to Tirtol Police Station right from the beginning till
closure and ending with the submission of the Final Form placing
this accused to face the Trial for the above offence; the same is in
contravention of the provision under section 9 of the SC and ST
(POA) Act read with Rule 9 of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocity) Rules, 1995 (for short,
the SC & ST (POA) Rules) made thereunder. He, therefore,
submitted that there being clear violation of Rule 7 of the SC & ST
(POA) Rules, the Trial stands vitiated and, therefore, the
judgment of conviction and order of sentence impugned in this
Appeal are liable to be quashed.
4. Mr.G.N.Rout, learned Additional Standing Counsel for the
Respondent-State, submitted that the investigation having been
supervised by a Police Officer of the rank of Deputy
Superintendent of Police, it would amount to substantial
compliance of Rule 7 of the SC & ST (POA) Rules and, therefore,
the ground raised by the learned counsel for the Appellant does
not merit acceptance.
5. In order to address the rival submission, Section 9 of the S.C
and S.T. (POA) Act, being gone through, it is seen that the same
empowers the State Government by notification in the Official
Gazette to appoint any officer of the State Government to exercise
the powers of arrest, investigation and prosecution of persons
before any Special Court when Rule-7 SC & ST (POA) Rules says
that the offence committed under the S.C. & S.T. (POA) Act shall
be investigated by a Police Officer not below the rank of Deputy
Superintendent Officer.
In the present case, the A.S.I. of Police (P.W.6) is the Police
Officer, who had investigated the case and submitted the Final
Form. Thus, there appears clear violation of the statutory
provisions with regard to the investigation. The investigation, in
the present case, having been made by an Officer, who was not
competent to do so, the question now arises that in such event,
whether the Trial of the case shall stand vitiated. The intention of
the legislature is clear that the offence under the Act, be
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. Therefore, the above violation/contravention of the
provisions of the Act and Rules goes to the very root of the matter
that the Court should not have even taken cognizance of the said
offence based upon the Final Form submitted by the P.W.6.
Merely, because the investigation has been supervised by Police
Officer of the rank of Deputy Superintendent of Police; that will
not suffice the purpose on the face of the settled law that if law
prescribes certain acts/ deeds/ things to be done by a particular
ranked Officer in a particular manner; it must be done in that way
or not. Here, the whole exercise being made by an Officer who is
not empowered; mere supervision by an empowered Officer
cannot be the substitute of investigation by him.
In that view of the matter, the final outcome in the Trial so
held pursuant to the order of cognizance and judgment is
vitiated. Therefore, the judgment of conviction and order of
sentence, impugned in this Appeal cannot be sustained.
6. In the result, the Appeal is allowed. The judgment of
conviction and order of sentence dated 30th June, 2001 passed by
the learned Additional Sessions Judge-Cum-Special Judge,
Jagatsinghpur in Special G.R. Case No.10 of 1999, are hereby set
aside.
(D. Dash),
Judge.
Basu
Location: HIGH COURT OF ORISSA : CUTTACK
