IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.873 of 2011 Narendra Kumar Jha @ Narendra Jha @ Nagendra Versus The State Of Bihar & Ors ---------------------------------- 4. 18.10.2011 Heard learned counsel for the petitioner and learned Mr. Adindra Kumar Jha, S.C. to G.P.18. Though, it has not been pleaded but as the law stands for that learned counsel for the petitioner on previous occasion was requested to place how much the order impugned is to be taken to test. Before coming to legal aspect involved in this case, it looks pertinent to mention certain facts which are found to be just and proper for proper adjudication. On 16.11.2006, a written report was filed by informant Jagdish Rai, disclosing therein that on 13.11.2006 at about 4:00 P.M. Narendra Jha, Naveen Jha were engaged in driving tractor through his field which was protested and thereupon, Narendra Jha abused by calling his caste name and further both of them manhandled him. The aforesaid written report led to institution of Nagar Muffassil P.S. Case No.566 of 2006 under Sections 341, 323, 504, 429 and 34 of the Indian Penal Code and 3(X) SC/ST (Prevention of Atrocities) Act and after completion of investigation, a final report was submitted. However, learned C.J.M. differing therefrom, took cognizance vide order dated 27.09.2008 under Section 341, 323, 506, 2 427/34 I.P.C. and 3(X) of the SC/ST (Prevention of Atrocities) Act which order has been put under challenge. As per Section 7 of clause 2 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, the Dy. S.P. has solely been held competent to investigate the case. Subsequently, as is evident that the State Government had notified and the aforesaid notification was published in gazette in 9th August, 2008 having its retrospective effect since 3rd June, 2002 whereunder the police officials below the rank of Dy. S.P. was also vested with the power of investigation. The aforesaid matter has been adjudicated upon by this Court as reported in 2011(1) PLJR-1097 nullifying its retrospective nature and further made the notification enforceable from 9th August, 2008. Admittedly as per Column 13 of formal F.I.R. it is evident that the investigation was entrusted to Jogindra Jha, A.S.I. who had submitted final form after conclusion of the investigation. Though, the learned C.J.M. differed therefrom and summoned the petitioner to face trial under the different Sections of the Indian Penal Code as well as SC/ST (Prevention of Atrocities) Act but the fact remains that the investigation was conducted by a Police Officer who on the relevant date was not at all competent to investigate the case that means to say, the whole process of investigation in the background of the aforesaid deficiencies appears to be non-est in the eye of law. 3 Consequent upon, the final form so submitted in accordance with Section 173 of the Cr.P.C. cannot be treated and in the aforesaid background there was no material before the learned Lower Court which could be recognized as police report to the extent of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. True it is that Section 190 of the Cr.P.C. identify all the three categories whereupon the court can take cognizance including suo motu but once it is found that there happens to be no police report, then in that circumstance, no question arises for differing therefrom and in the aforesaid background, summoning of the petitioner to the extent of an offence punishable under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act does not arise. Consequently, the order impugned to that extent is quashed. However, so far remaining portion of the order impugned is concerned, that is found to be passed in accordance with law and under the aforesaid terms, the instant case is allowed. Ravi/- (Aditya Kumar Trivedi, J.)