IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45227 of 2008 1. CHANDRABHUSHAN TIWARI @ BARE TIWARI, SON OF LATE BISHWANATH TIWARI 2. SUNIL TIWARI, SON OF CHANDRABHUSHAN TIWARI 3. VINAY TIWARI SON OF CHANDRABHUSAN TIWARI 4. RAMJATAN SINGH SON OF LATE LALJI SINGH 5. RAMBACHAN SINGH SON OF LATE GOPAL SINGH 6. BIKRAMA SINGH SON OF RAMJATAN SINGH, ALL RESIDENT OF VILLAGE SALEMPUR(RUNWANI TOLA) P.S. SIDHWALIYA, GOPALGANJ. …PETITIONERS Versus 1. STATE OF BIHAR 2. MALA DEVI, WIFE OF BIRENDRA BAITHA …OPPOSITE PARTIES For the petitioners : Mr.A.K.Sharma For the State : Mr.Jharkhandi Upadhyay,APP ----------- 04. 19.07.2010 Petitioners who are facing Trial No.3184/08, are aggrieved by order dated 24.05.2008, passed by learned Chief Judicial Magistrate, Gopalganj, whereby cognizance has been taken under diverse sections of the Penal Code as also under sections 3(1)(X) of the Scheduled Castes & Scheduled Tribes(Prevention of Atrocities) Act(hereinafter referred to as the „Act‟.) Relevant facts of the case may be set out. An FIR was lodged against the petitioners alleging therein that the informant‟s husband was employed in Border Security force(BSF), whereas the informant and her mother-in-law lived in the village. Certain amount was withdrawn in the name of the informant‟s father-in-law and a well was constructed/repaired wherefrom water was being used by the Dalit people adjacent to the house of the informant. In due course of time one Ramjatan Singh constructed a house in the east south corner - 2 - of the well and thereby made an attempt to create a road. The same was protested whereafter all the accused person abused and assaulted the informant by fists and slaps and called him Dhobi and Chamar near the well located close to the village road. This attracted the villagers whereafter accused persons dropped barn husk in the well, so that members of the Scheduled Castes and Scheduled Tribes may not drink water therefrom. Investigation resulted in filing of charge-sheet. This gave rise to the present order. While assailing the impugned order, Mr. Tiwary, learned counsel appearing on behalf of the petitioners, submits that whole investigation was bad in law as the same was carried out in gross violation of Rule 7(1) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Rules, 1995 (for short the Rules. He relies on a judgment of the Supreme Court reported in the case of State of M.P. vs. Chunnilal @ Chunni Singh. He laid emphasis on paragraphs 5 and 6 of the judgment which read thus: “5. For appreciating the rival submissions, reference needs to be made to Section 9 of the Act and Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995(hereinafter referred to as the „Rules‟). Section 9 of the Act and Rule 7 of the Rules read as follows: “Section 9. Conferment of powers.-(1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to so,- (a) for the prevention of coping with any offence under this Act, or (b) for any case of class of group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by - 3 - a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particulars, the powers of arrest, investigation and prosecution of persons before any Special Court. (2)All officers of police and all other officers of Government shall assist the officer referred to in sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder. (3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under sub-section (1). Rule 7. Investigating Officer,-(1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of 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 investigation done by the Investigating Officer.” 6. 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 the rank cannot act as investigating officer. The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read - 4 - 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 in valid. 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.” Learned counsel for the State, however, supported the impugned order. He produced a copy of the notification bearing memo no. 6104 dated 3rd June,2002, issued in the Department of Home(Police) Govt. of Bihar, Patna, and submitted that by reason of the said notification Rule 7 of the Rules stands modified. Heard both sides. In orders to appreciate the submissions advanced on behalf of the petitioner this Court deems it apposite to quote relevant sections of the Act and the Rules. Section 9 of the Act reads as under: “9. Conferment of powers.-(1) Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it considers it necessary or expedient so to so,- (a) for the prevention of and for coping with any offence under this Act, or (b) for any case or class of group of cases under this Act, in any district or part thereof, confer, by notification in the Official Gazette, on any officer of the State Government the powers exercisable by a police officer under the Code in such district or - 5 - part thereof or, as the case may be, for such case or class or group of cases, and in particulars, the powers of arrest, investigation and prosecution of persons before any Special Court. (2) All officers of police and all other officers of Government shall assist the officer referred to in sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder. (3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under sub-section (1). Rule 7(1) of the Rules reads as under: “Rule 7. Investigating Officer,-(1) An offence committed under the Act shall be investigated by a police officer not below the rank of 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.” It is the submission of learned counsel that in the present case the investigation was carried out and charge sheet was submitted by an Assistant Sub-Inspector of police. It is thus the contention of the petitioners that the same is violative of Rule 7(1) of the Rules. Section 9 of the Act does not set out the status of a police officer who is required to take up investigation of the case. It only enables the State Government to appoint a set of police officers who can take up investigation of any case or group of cases under this Act. Rule 7(1) says that no officer below the rank of Deputy Superintendent of Police shall be the investigating officer in respect of offence allegedly committed under the provisions of the Act. The State Government invoking its power in terms of section 9(1) of the Act has come out - 6 - with a notification contained in memo no.6104 dated 3rd June,2002 relevant portion of which reads as under: “In exercise of the powers conferred by section 9(1) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989(No.33 of 1989) and having regard to the nature of cases filed under this Act, the State Govt. authorizes the officers of the rank of Police Inspector, Sub- Inspector of Police and Assistant Sub-Inspector of Police to investigation cases filed under this Act within the State of Bihar with effect from 31.3.95, the date of coming into force.” The Supreme Court was dealing with a matter where admittedly there was no such notification issued by the State Government authorizing a police officer below the rank of Deputy Superintendent of Police to carry out investigation and submit final form in respect of offence allegedly committed under the Act. Here is a case where the State Government in exercise of power conferred under section 9(1) of the Act has, by a notification, authorized class of officers upto the rank of Assistant Sub-Inspector of Police to be the officer who shall be authorized to investigation the offence punishable under the Act. The correctness of said notification is not under challenge. In that view of the matter, reliance on the said judgment by the learned counsel appears to be misconceived. For the reasons above, this Court does not find any merit in this application which is accordingly dismissed. hr ( Kishore K. Mandal )