IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.5642 of 2009 (Against the order 22-11-2008 passed by learned Additional Sessions Judge-Ist-cum-Special Judge, SC/ST, Patna in Special Case No. 14 of 2005) Pramod Kumar Singh, S/o Late Karu Singh, Resident of village- Sultanpur, P.O.-Kanhaipur, P.S. Mokama, District Patna.. Petitioner. Versus The State Of Bihar .... .... Opposite Party. Dated- 08.12.2011 PRESENT HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA J U D G M E N T Hemant Kr Srivastava,J. 1. This petition under Section-482 of the Cr.P.C. has been filed for quashing the order dated 22-11-2008 passed by learned Additional Sessions Judge-Ist-cum- Special Judge, SC/ST, Patna in Special Case No. 14 of 2005 whereby and whereunder he refused to discharge the petitioner from the above-said case and fixed the case for framing of the charge against the petitioner. 2. The brief facts of the case are that, one Ramesh Kumar Singh, Inspector of Police-cum-Officer-in- charge, Harijan Police Station, Patna recorded his self- statement on 19-12-1998 to this effect that petitioner’s father, namely, Karu Singh was BHUMIHAR by caste and had married with a lady of his own caste but after death of his first wife, he again married with one, Sundari Devi of Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 2 village-Sultanpur The aforesaid Sundari Devi was a member of Schedule Caste community and by caste she was a Dusadh and out of the aforesaid wedlock, 5 children including the petitioner were born. The petitioner got admitted himself and studied in upper school, Sultanpur, Mokama High School and Patna Science College as well as Darbhanga house, Patna on the basis of fake caste certificate. He received scholarship and further on the basis of fake and fabricated Caste Certificate, he got appointed himself as Deputy Collector against reserved quota of Schedule Caste Community. The petitioner had attached the fake certificate of Schedule Caste Community alongiwth his application which had been filed by him for competitive examination. In enquiry, it came to light that the petitioner was not brought up and educated in the family and environment of his mother who belonged to Schedule Caste Community and furthermore, it came to light that on the basis of forged certificate of Schedule Caste Community, he not only got admitted himself in educational institution and obtained scholarship but also got government employment against the reserved quota of Schedule Caste Community. 3. On the basis of self-statement of aforesaid Ramesh Kumar Singh, formal FIR under Sections-419, 420, 465, 467, 468, 471, 474, 120B of the Indian Penal Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 3 Code and 3(i)(xi), 3(ii)(vii) of SC/ST (Prevention of Atrocities) Act was registered against the petitioner. 4. The matter was investigated by the police and after investigation, charge sheet against the petitioner for the above-said offences, was submitted and after submission of charge sheet, cognizance of the offences was taken on 29-04-2004 and the case was committed to the court of sessions for trial. Subsequently, the case was sent to the court of Additional Sessions Judge Ist-cum- Special Judge , Patna. 5. On 17-01-2007, a petition under Section-227 of the Cr.P.C. was filed before the learned Additional Sessions Judge-Ist-cum-Special Judge, Patna alleging therein that no case is made out against the petitioner but learned Additional Sessions Judge-Ist-cum-Special Judge, Patna rejected the aforesaid petition passing the impugned order dated 22-11-2008 which is under challenge before this court. 6. It is relevant to mention here that earlier Cr. Misc. No. 3976 of 1999 was filed on behalf of the petitioner under Section-482 of the Cr.P.C. before this court for quashing the FIR of present case but the aforesaid Cr. Misc. No. 3976 of 1999 was dismissed with certain observations and directions vide order dated 10-08-1999. The petitioner challenged the order dated 10-08-1999 Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 4 passed in Cr Misc. No. 3976 of 1999 before the Hon'ble Supreme Court by filing Special Leave to Appeal (Criminal) No. 3485 of 1999 and the aforesaid Special Leave to Appeal (Criminal) was dismissed as withdrawn by the Hon'ble Supreme Court of India vide order dated 17- 07-2000. 7. Again, when after investigation, police submitted charge sheet and cognizance was taken by the learned court below, the petitioner preferred Cr. Misc. No. 32647 of 2004 before this court under Section-482 of the Cr.P.C. for quashing the cognizance order dated 19-07- 2004 passed by learned Additional Chief judicial Magistrate, Barh in Barh (Harijan) P.S. Case No. 16 of 1998 and the aforesaid Cr. Misc. No. 32647 of 2004 was dismissed vide order dated 01-09-2006 with observation that the petitioner will be at liberty to raise the points at the time of framing of charge as the case was not investigated by an officer of the rank of Dy S.P. and, therefore, he cannot be charged for the offences under Sections-3(i)(ix), 3(ii) (vii) of SC/ST (Prevention of Atrocities) Act. Against the aforesaid order, the petitioner preferred Special Leave to Appeal (Criminal) No. 5426 of 2006 before the Hon'ble Supreme Court of India but the aforesaid Special Leave to Appeal (Criminal) was dismissed by the Hon'ble Supreme Court vide order dated 13-11-2006. Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 5 8. Learned counsel appearing for the petitioner challenged the impugned order on two grounds; (i) firstly, he submitted that in course of investigation, not a single prosecution witness has supported the prosecution story rather almost all the prosecution witnesses have stated that the petitioner was born and brought up in the family and environment of his mother who was admittedly, a member of Schedule Caste Community. In support of his above ground, he contended that the caste status of a person will necessarily have to be determined in the light of the recognition received by him from the members of the caste into which he seeks an entry. To fortify the above-said contention, he referred a decision reported in AIR 1959 SC 1318. It is further contended by him that even if the materials collected by the I.O. in course of investigation, are unrebutted, then also the petitioner cannot be convicted for the alleged offences and, therefore, there was nothing before the learned trial court to frame charges against the petitioner but in spite of that, the learned trial court refused to discharge the petitioner from above said case. He also relied a decision reported in 1983 BBCJ 158. It is further contended by him that for framing of the charges, prosecution has to stand on its own leg and only on the basis of suspicion charge cannot be framed. Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 6 9. The second ground of learned counsel for the petitioner for assailing the impugned order is that the investigation of the present case has been conducted by an officer below the rank of Dy S.P. and, therefore, the entire investigation is illegal and no prosecution can be sustained on the basis of an investigation which has been conducted by an officer below the rank of Dy S.P. 10. On the other hand, learned Additional Public Prosecutor appearing for the state supported the impugned order and submitted that earlier the same points were raised by the petitioner twice before this court as well as Hon'ble Apex Court of this country but the same were rejected not only by this court but Hon'ble Supreme Court of India also and, therefore, the petitioner is not entitled to raise the same points again before this court. He further submitted that a charge can be framed only on the basis of mere suspicion as held by Apex Court of this country in several decisions. 11. Having heard rival contentions of both the parties, I have gone through the record as well as decisions cited on behalf of the petitioner. 12. Admittedly, Harijan P.S. Case No. 16 of 1998 for the offences under Sections-419, 420, 465, 467, 468, 471, 474, 120B of the Indian Penal Code and 3(i)(ix), 3(ii)(vii) of SC/ST (Prevention of Atrocities) Act was Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 7 registered on the basis of an enquiry made by the informant, Ramesh Kumar Singh in view of the guidelines laid down by Government of India as contained in letter No. 12017/11/98 of Assistant Director , Ministry of Social Justice and Welfare (MCDRL) Cell) dated 03-12-1998 in which following the decision of the Supreme Court, it has been laid down that where a child is born out of marriage between a member of the upper class and the schedule Caste/schedule Tribe, the crucial test for determination as to whether he should be treated as a schedule caste, is whether he has been accepted by the Schedule Caste Community as a member of their community and has been brought up in that surrounding or not. 13. It is the case of prosecution that after due enquiry, the informant found that the petitioner was born out of marriage between a member of an upper class and Schedule Caste Community but he has been brought up in the surrounding and environment of his father who was by caste Bhumihar, a member of upper class community. 14. It is also an admitted position that after investigation, the police submitted charge sheet for the above-said offences against the petitioner and subsequently, the cognizance for the aforesaid offences was taken and the case was committed to the court of sessions for trial. Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 8 15. Now, I take up the point as to whether an officer below the rank of Dy S.P. is empowered to investigate the cases registered under the provisions of SC/ST (Prevention of Atrocities) Act or not. 16. Admittedly, in the present case, the case was registered on 19.12.1998 for an offence which had taken place in the year, 1967-68 and in the year, 1977 when the petitioner got admitted himself in education at institutions and took scholarship and joined Government job respectively, allegedly, on the basis of fake caste certificate. Furthermore, the I.O. of the present case took the charge of investigation on 18-12-1998. It would appear from perusal of the case diary that initially, the charge of investigation of this case was taken up by a Dy S.P. (CID), Patna and he investigated the present case in part but due to his retirement, he handed over the charge of investigation to a police inspector-cum-officer-in-charge which is evident from paragraph-86 of the case diary. Subsequently, again, the charge of investigation of the present case was taken up by a Sub inspector which is evident from perusal of paragraph-91 of the case diary and the aforesaid SI conducted the rest investigation and submitted charge sheet against the petitioner on 29-06- 2004. 17. Sectionm-7 of SC/ST (Prevention of Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 9 Atrocities) Rules 1995 runs as follows: (i) an offence committed under the SC/ST (Prevention of Atrocities) Act, 1989, shall be investigated by a police officer not below the rank of Dy S.P. 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, (ii) The investigating officer so appointed under Sub rule (1) shall complete the investigation on top priority basis within 30 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. (iii) 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 investigations done by the investigating officer 18. It is relevant to mention here that the State of Bihar in exercise of power conferred under section-9(i) of the SC/ST (Prevention of Atrocities) Act, 1989 issued notification dated 03-06-2002 authorizing the officers of the Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 10 ranks of police inspector, sub-inspector of police and Assistant sub inspector of Police to investigate the cases filed under the Act of 1989 within the State of Bihar w.e.f. 31-03-1995 and the aforesaid notification was published in official gazette of State of Bihar on 09-08-2008. 19. In Smt Ram Deni Devi Vs State of Bihar reported in 2011(2) BBCJ V-420, the validity of the aforesaid notification was challenged before this court and this court held that the impugned notification dated 3rd June, 2002 is not ultavires the Act of 1989 or the rules made thereunder and also declared that the notification dated 3rd June, 2002 has become effective from the date of its publication in the official gazette of the State of Bihar i.e. on and from 9th August, 2008. In the aforesaid decision, it has also been held by this court that the investigation and consequent prosecution lodged by the police officer empowered under the notification dated 03- 06-2002, though lower in the rank than a Deputy Superintendent of Police, on or after 9th August, 2008 will be valid although the offence in question may have been committed prior to 9th August, 2008. It has further been held by this court in the above-said decision that the investigation made by a police officer below the rank of Deputy Superintendent of Police, after the date of the rule i.e. 31-03-1995 and prior to 09-08-2008 and consequent Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 11 prosecution will not stand validated by the notification dated 03-06-2002 published on 09-08-2008. 20. In the present case, admittedly, the alleged occurrence and investigation of the case took place prior to 09-08-2008 and furthermore, part of the investigation of the present case has been conducted by an officer having rank of Deputy Superintendent of Police whereas part of investigation has been conducted by an officer having the rank of police Sub inspector. So, in my view, the investigation of this case cannot be said to be in accordance with law and in view of the above-said decision, it is easily said that by notification dated 03-06- 2002, the aforesaid investigation cannot be validated Therefore, I feel no hesitation to hold that the investigation of the present case is not in accordance with law and on the basis of aforesaid investigation, the petitioner cannot be prosecuted. 21. It is not out of place to mention here that earlier the petitioner had challenged the cognizance order dated 29-07-2004 passed by ACJM, Barh in the above said Barh (Harijan) P.S. Case No. 16 of 1998 by filing Cr. Misc. No. 32647 of 2004 but the aforesaid Cr. Misc. No 32647 of 2004 was dismissed by this court vide order dated 01-09-2006 and the aforesaid order was affirmed by Hon’ble Apex Court by order dated 13-11-2006 passed in Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 12 Special Leave to Appeal (Criminal) No. 5426 of 2006. It is relevant to mention here that in aforesaid Cr. Misc. No. 32647 of 2004, this court gave a liberty to the petitioner to raise the point of faulty investigation at the time of framing of the charge and, therefore, it cannot be said that the petitioner has got no power to raise the aforesaid point in the light of order passed in Cr. Misc. No. 32647 of 2004 as well as SLP No. 5426 of 2006. 22. Now, I take up this point as to whether there was material before the learned trial court to frame charges against the petitioner or not ? 23. It would appear from perusal of the case diary vide paragraphs-14, 19, 20, 21 etc that almost all the witnesses have stated in their statements before the I.O. that the petitioner has been brought up in the family and environment of his mother and he was not accepted by the relatives and agnates of his father and furthermore, the aforesaid witnesses have stated that even after marriage, the mother of the petitioner had been remain staying at her parental house till her death. The aforesaid witnesses have also stated that the petitioner too, married with a lady who belongs to Schedule Caste Community and not only this, the other siblings of the petitioner also married with the members of Schedule Caste Community. Vide paragraphs-46, 47, 48, 49, 53, 54 of the case diary, the Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 13 witnesses stated that the petitioner has been brought up on the expenses of Karu Singh who cared and looked after the petitioner and his other brothers. It is relevant to mention here that at paragraph-54 of the case diary, the statement of one, Ram Shubhag Sharma has been incorporated by the I.O. The above-said Ram Shubhag Sharma is the son of Karu Singh and the aforesaid Ram Shubhag Sharma was born from the first wife of aforesaid Karu Sharma. This witness has stated that when his father established illicit relationship with Sundari Devi, the mother of the petitioner, his father started residing at the house of aforesaid Sundari Devi. He also stated that the petitioner as well as his other brothers did not get any landed property from their father though his father used to pay the cost of study of the petitioner and his brothers. 24. It would appear from the materials collected in course of investigation that the mother of the petitioner never went at the house of petitioner’s father after her marriage rather she remained staying at her parental house and furthermore, the petitioner as well as his other brothers and sisters married with the members of Schedule Caste Community. Furthermore, it would appear that almost all the witnesses have stated that the petitioner as well as his other brothers and sisters had no connection with the relatives of their father. So, the aforesaid materials Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 14 clearly go to show that the petitioner has been brought up in the family and environment of his mother who belongs to Schedule Caste Community. 25. It is true that at the stage of framing of the charge, roving inquiry of the prosecution evidence is not permitted but from bare perusal of the statements of witnesses, it would appear that the petitioner has been brought up in the family and environment of his mother and he was never accepted by the relatives of his father. So, even if the materials available on the case diary are accepted in toto, then also, it can easily be said that the petitioner was never accepted by the upper class community rather he was happily accepted by the community of his mother who was a member of Schedule Caste Community and it has already been held by the Hon’ble Apex Court of this country that the nexus between the child and the community is the real test irrespective of the fact whether accommodating class, caste or community is Schedule Caste Community or upper caste community. 26. Section-227 of the Cr. P.C. says that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 15 ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 27. Perusal of the aforesaid provision shows that the Judge shall discharge the accused if after considering the record of the case and the documents submitted therewith and hearing the submissions of the accused, the Judge considers that there is no sufficient ground for proceeding against the accused i.e. either there is no legal evidence or that the facts do not make out any offence at all. No doubt, at this stage, even a very strong suspicion founded upon materials leading the trial court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence lodged, may justify the framing of charges but if by and large, two views are equally possible and the Judge is satisfied that the evidence giving rise to some suspicion is not grave, he may discharge the accused. 28. As I have already stated that almost all the witnesses have specifically or impliedly stated before the I.O. that the petitioner has been brought up in the family and environment of his mother who belongs to Schedule Caste Community and further, the petitioner was never accepted by the relatives of his father who was a member of upper class community, in my view, there was nothing Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 16 before the trial Judge to frame charges against the petitioner. 29. No doubt, earlier the petitioner came before this court for quashing the present FIR of Harijan P.S. Case No. 16 of 1998 raising almost the same and similar grounds and this court rejected the Criminal Miscellaneous No. 3976 of 1999 filed by the petitioner but this court has clearly observed in order dated 10-08-1999 passed in Cr. Misc. No. 3976 of 1999 that these are matters, however which are required to be verified by the investigating agency and it is pre-mature to say anything at this stage and since the case is in the primitive stage and it is open to the petitioner to take his defence as may be available to him in law. Therefore, the aforesaid order dated 10-08- 1999 passed in Cr. Misc. No. 3976 of 1999 as well as the order dated 17-07-2000 passed in Special Leave to Appeal (Criminal) No. 3485 of 1999 shall not restrict the petitioner to raise the above points again at appropriate stage either before the lower court or before this court. Furthermore, admittedly, the petitioner preferred Cr. Misc. No. 32647 of 2004 against the order of cognizance dated 29-07-2004 passed in the present case and the aforesaid Cr. Misc. No. 32647 of 2004 was dismissed by this court vide order dated 01-09-2006 against which Special Leave to Appeal No. 5426 of 2006 was preferred but the same Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 17 was also dismissed. No doubt, in the aforesaid order dated 01-09-2006, it has been held by this court that the only recourse for the petitioner is to prove his case during trial and only then, he can be exonerated from the charge but admittedly, the petitioner had only challenged the cognizance order dated 29-07-2004 in Cr. Misc. No. 32647 of 2004 whereas in this petition, he had challenged the order dated 22.11.2008 by which his discharge petition was rejected and, therefore, the aforesaid observation given by this court in Cr. Misc. No. 32647 of 2004 is nothing but only an obiter dicta. As per section 227 of the Cr.P.C., charge can only be framed on the basis of materials collected by investigating agency in course of investigation and no charge can be framed on the weakness of the defence. So, the pertinent question arises in this petition as to whether there were materials available on the case diary against the petitioner to frame charges or not. As I have already stated that almost all the proposed prosecution witnesses have stated that the petitioner has been brought up in the family of his mother and he was accepted by the Schedule Caste Community. So, in my view, there was nothing before the learned trial Judge to frame charge against the petitioner and in the aforesaid circumstance, even if the aforesaid observation has been given by this court in order dated 01-09-2006 Patna High Court Cr.Misc. No.5642 of 2009 dt.05-12-2011 18 passed in Cr. Misc. No. 32647 of 2004, the petitioner is entitled to seek relief under Section-227 of the Cr.P.C. 30. So far as the offences of Indian Penal Code are concerned, it is apparent that