G’ U‘ 0‘5“ “LNDbi'A PRADES JADAfJPUg “i i3 nTH CUR?‘ EI ‘ rminal Zkp‘l Na Ci pea g €59”£ = imm Lal 5/0 aux-Jan sam \\\\\\\\\\“\\l\\l\|\\\MM ged about 43 yea Li/lags l . Chedi La}. S/O Durjan Sam]. Both xesient of villag Quma Pub”. Uray Diskt‘RAIPU‘R. VS. §Q1\?DEIJ"‘ State of ELF. f RES - : ( 2' ,/ ? NDE{ ‘SEC‘T’IQN 37£L(2) OF Y‘HE CGD GE: Oa ??.ELI:M 1’ “ “ a IIJ 2 h d é l a &DF’¥{ U E ‘pulgm HIGH COURTIOF CHHATTISGARH AT BILASPUR Hon’ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 196711 996 APPELLANTS Hori Lal and another Versus State of Madhya Pradesh § RESPONDENT Shri P.K.C. Tiwari IearnedrSr. counsel with Shri Shashi Bhushan for the appellants. Shri Neeraj Mehta PL for the State IMINAL JUDGMENT (18.94.2011) This appeal is directed ainst the judgment and orde dated 18.10.196 passed by Special Judge, Raipur n Special Case No. 128/199 convicting the accused/appellants for the offene punishable under SeiOn 3 (1) (X) read with 34 of the Scheduled Caste an Scheduled Tribe (Prevention of Atrocities) Act (for shortthe “Act”) and sentening each of them to undergo rigorous iprisonment for six onths and pay fine of Rs. 500 in default of payment of fine to further unergo simple imprisonment for three months. ‘2. Facts ofithe case in brief are that on 1.11.1995 FIR (Ex. P-1) was lodged by Ram Bagas (PW-1) alleging that on 31.10.1995 at about 8 p.m,. attle of one lndal had damaged the crop of Chandulal and 'when he ong with some other persons namely Chanuia, Khorbahra and saram was aking the cattle to the cattle pond, one of the cattle sat down near the house of one Horilal and dUring this period, the acused/appellants ca out from their house and ask theml to release the cattle. It s alled hat ome alteation took place between both~te parties in which accused/appellants abused the complainant using filthy language and calling Chamar. Based on this FIR, offence was registered under (Section 3 (1) (X) of the Act and after'comple’tion of investigation challan was fled by the police on 181 1996 for the said offence However the charge has been framed by the Court below under Section 3 (1) (X) read wrth 34 of the Act. RIMINAL APPEAL UNDER SECTION 374 {1) OF THE CODE OF CR PROCEDURE ag r 9 i 6 c ct d tv‘ c m m d c al l A t c me ed i ge t s rc h 3&q @ 3. So as to hold the accused/appellants guilty, prosecution has examined 07 witnesses in support of its case. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge Ievelled against them and pleaded their innocence and false implication in the case. This apart, one Ram Ratan (DW-1) has also been examined by the defence in support of its case. ~2‘ 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellants as mentioned above in paragrap No.1 of this judgment. 5. Counsel for the appellants submits that in the case in hand the investigation has been done by M.S. Baghel (PW-6) who at the relevant time was holding the post of Sub Inspector in the Police Department whereas charge sheet was filed by another Sub Inspector namely Ram Krishna Singh (PW-7). He submits that Rule 7 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995 (for short the “Rules") the investigation ought to have been conducted by the police officer not below the rank of Deputy Superintendent of Police specially authorized by the State Government/ Director General of Police/Superintendent of Police. He submits that when the investigation itself is faulty, entire proceedings are vitiated and the accused/appellants deserve to be acquitted on this ground alone. 6. On the other hand counsel for the respondent/State opposes the submissions made by the counsel for the appellants. He however admits that the investigation has been done by M.S. Baghel (PW-6) Sub Inspector in the police department and the challan has been med by another Sub inspector namely Ram Krishna Singh (PW-7). 7. First of all, reference of Rule 7 of the Rules, 1995' appears to be a necessity for disposal of the case in hand, which/reads as under: “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 h Government/Director General of Police/Superintendent of Police after taking into account 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 basis 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 investigations done by the investigating officer.” While dealing with an identical question in the matter of T. Hanmanthu v. State of A.P. it has been held by the Andhra Pradesh High Court as under: ._3_ “4. It is not in controversy that the date of offence is 27.4.1996. The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 came into force from 1.4.1995; PW. 5, Assistant Sub Inspector, had investigated into the offences with which the accused had been 'charged with and recorded the statements of witnesses. lt is no doubt true that Rule 7 has no retrospective operation. Investigation prior to there to in relation to offences under the SC & ST (POA) Act also was being conducted by regular investigating agency but, however, specific rule i.e. Rule 7 was introduced by which the specified ofhcer has .to conduct investigation. This check was introduced by putting a specific bar in conduct of investigation by other investigating officers to be investigated with better care and caution, more concerned with social compulsions, order and disorder and hence, if investigation is entrusted to a higher omcer, the same may be proceeded with on sound lines. Be that as it may, apart from this aspect of the matter, cognizance was taken by the learned Special Judge straightway and hence due to nOn committal of the case in view clear language of Section 193 Cr.P.C., the whole trial is vitiated. Viewed from any angle, the conviction and sentence imposed as against the appellant accused cannot be sustained and accordingly, they are set aside.” In another decision of the Andhra Pradesh High Court in the matter of D. Ramalinga Reddy @ D. Babu v. State of A.P. Cr.L.J. (1999) 2918 it has been held as under: “7. The learned senior Counsel appearing for the appellant submits that since the prosecution was initiated under the s .. .. * @ ’§_ under punishable 6. V '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 notined 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 that 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 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 invalid. 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 ofhcer 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. ln such a situation the proceedings shall proceed in appropriate Court for the 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." “4. ln this case, the conviction under Atrocities Act is challenged on various grounds. Firstly. Adv. Shri Tamke for the appellants argued that in this case theinvestigation is carried out by the P.S.I., which ought to have been carried out by a person of the rank of Dy. Superintendent of Police or above. l may refer to Rule 7 of the Scheduled Castes and Scheduled Tribes. (Prevention of Atrocities) Rules, 1995, which lays down that when offence is committed under the said Act, the investigation shall be carried out by the Police Officer, nor below the rank of Dy. Superintendent of Police. This Court has held in Asiskhan Pathan V. State of Maharashtra, 2006 All MR (Cri) 796: (2006 (6) AIR Bom R 220) and Uttamlal Yema v. State of Maharashtra, 2006 All MR (Cri) 1015 : (2006 (4) AIR Bom R 20) that the investigation carried out by the Police officer of lesser rank is vitiated. Another reason on which the order of conviction under the Atrocities Act..." Fortifying the aforesaid views of the High Courts it has been held by the Supreme Court in the matter of State of M.P. v. Cunnilal @ Chunni Singh 2009 AIR SCW 5335 as under: Further confirming the aforesaid views of the High Courts it has been held‘by the Supreme Court in the matter of State of Punjab v. Hardial Singh & Ors. 2010 AIR SCW 2358 as under: ” _é_\ “5. As is rightly contended by Iearned counsel for the ppellant—State the order is very confusing. Be that as it may the only question is whether investigation done by the police officer specifically authorized to do so in terms o the Rule 7 is illeal qua offences not relatable to any provision under the Ac. Recently, the controversy of the present nature was decide by ths Cort in State of M.P. v. Chunnila @ Chunni Sigh (Criminal Appeal No. 943 of 2003) decided on a f t g d i u l n 15.4.2009 (reported in 2009 IR SCW 5335). A w n te l A v Dealing ith a identical question in the matter of Sta of A.P. v. SViswanadula Chetti Babu WlTl- State of .P. . Mekala Kuppamma & Anr. 2011 AIR SCW 12 the Supreme Court held thus: 3. A bare perusal of the Rule would reveal tht the State overnment/the Director General of Plice/Superintendent of olice after taking into account he experiee tc. of a Deputy Superintendent of Police shall appoint him as the Investigating Officer in cases under the above Act. Sub—r (3) further provides that the Home Scretary and the Social Welfare cretary to the Government and other officers in charg shall review the working of the Dety Suerintendent of ‘PoliCe and the investigations done by him at the end of every quarter. lt is therefore apparent that authorit to investigate has to be conferred on a specified officer not below th ran of eputy Superintendent of Police.” “4. e are, thefore, of the opinion that in view of the clear mdate of the Res it was only specified Deputy Superitendent of Police who could investigate an offence under the Act. An investigation done by any ofhcer below that ank and not specified as per Rule 7 would not be entitle to invtigate any such offnce. l the present matter the investigation has been made by an officer of the rank of n Assistant Sub Inspector of Police. Tis was not permissible. We endorse the judgment of the High Court in thi respe 8. M.S. Baghel (PW-6) — Sub Inspector, Scheduled Caste Welfare Cell, ipur has admitted the fact that after receiving the diary he carried out the entire investigation. Thus there is dispute that the investigation was no dne by the eputy Suerintendent of Police and hat being so there is utter violation of Rule 7 of the Rules, ’1 995 adumbrated i the preceding pagraph of this judgment. 9. A bare perusal of the said Rule reveals tht State Government/ Director General of Police/ Superintendent of olice, after taking into account the past experience, sense of ability and justice to perceive the a G o P t nc e ule e Se e pu p y . e k D W re an ul a n r d es e n a s c h Ra no t o D p t n ra a P @ ._.)~ implications of the case etc. of the Deputy Superintendent of Police shall appoint him as Investigating Officer for an offence under the Special Act. Sub Rule 2 of Rule 7 further provides that the investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority basis within thirty days and submit the report to the Superintendent of Police who in turn will immediately fon/vard the report to the Diregyor General of Police of the State Government. 10. Thus in view of the clear mandate of Rule 7 of Rules, 1995 and the decisions of the Supreme Court and various High Courts referred to above it is only the Deputy Superintendent of Police who is competent to investigate the offence under this special Act. Undisputedly, in the case in hand, the entire investigation has been carried out by the Sub Inspector of Police, which is in flagrant violation of the legal provision and renders the entire trial as vitiated. 1. Consequently, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellants are acquitted of the charge levelled against them. They are on bail. Their bail bonds stand discharged; Sdln Pritinker Diwaker ‘ Judge 1