IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:05.10.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.Nos.3580 to 3585 of 2009 and M.P.No.1 of 2009 V.P.Kuppurao .. Petitioner in all the Crl.O.Ps. Vs 1.The Director General of Police TamilNadu Government DGP Office Mylapore Chennai 4 2.The Superintendent of Police Vellore District D.P.O Sathuvachari Vellore 9 3.The Insepctor of Police District Crime Branch Vellore District D.P.O. Sathuvachari Vellore 9 4.The Director Central Bureau of Investigation Shastri Bhavan Nungambakkam .. Respondents in Chennai all the Crl.O.Ps. These Criminal Original Petitions have been filed under Section 482 Cr.P.C. to transfer the investigation in Crime Nos.19,21,22,20,18 and 17 of 2007 dated 04/07/2007 from the file of the 2nd and 3d respondents herein to the 4th Respondent the Director Central Bureau of Investigation Shastri Bhavan Nungambakkam Chennai. For Petitioner : Mr.R.Sankarasubbu For Respondents: Mr. Kumaresan, (R1 to R3) Addl. Public Prosecutor for Mr.I.Paul Nobel Devakumar, Govt. Advocate (Crl.Side) R4 : Mr.N.Chandrasekaran, Spl. Public Prosecutor for CBI Cases https://hcservices.ecourts.gov.in/hcservices/ O R D E R All these petitions have been filed under Section 482 Cr.P.C seeking orders directing the transfer of the investigation in Cr.Nos.17/2007 to 22/2007 registered on the file of District Crime Branch, Vellore against the then Superintendent of Police, Vellore District and Deputy Superintendent of Police, Vellore Sub-Division to the Central Bureau of Investigation. All the above said cases were registered based on the complaint of V.P.Kuppu Rao, a retired Inspector of Police, who is the petitioner in all these petitions. 2. The crux of the allegation made in each one of the criminal cases, investigation of which is sought to be transferred to Central Bureau of Investigation, is that the concerned police officer (Superintendent of Police/ Deputy Superintendent of Police) committed willful negligence in discharge of his duties in the registration and investigation of the cases based on the complaint of the Petitioner alleging commission of offences of atrocities on a member of a scheduled caste, punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. All the above said cases were registered based on the orders of the learned Chief Judicial Magistrate/Judicial Magistrate based on the private complaint preferred by the petitioner herein, directing registration and investigation of cases based on the complaints. 3. Cr.No.17/2007 was registered for alleged offences under sections 221, 218, 119, 166, 167, 466 IPC and 154(1) & 2(1)(2) of Cr.P.C along with offences punishable under Sections 3(ii)(v) and (vii) and Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also an offence punishable under Section 10 of the Protection of Civil Rights Act, 1955. The sole accused therein is one Mr.Pattabi, who was the then Deputy Superintendent of Police, Vellore Sub-division at the time of alleged occurrence who had been transferred and functioning as Deputy Superintendent of Police, Katpadi at the time of registration of the case on 04.07.2007. 4. Cr.No.18/2007 was registered for alleged offences under sections 221, 107 and 506(ii) IPC and Section 17 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(ii)(v) and (vii) and Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also an offence punishable under Section 10 of the Protection of Civil Rights Act, 1955 r/w 200 Cr.P.C and 156(3) Cr.P.C. The sole accused therein is one Mr.M.Ashok Kumar, who was the then Superintendent of Police, Vellore District at the time of alleged occurrence who had been transferred and functioning as Superintendent of Police in 'Q' Branch, Chennai at the time of registration of the case on 04.07.2007. 5. Cr.No.19/2007 was registered for alleged offences under sections 221, 119, 166, 218, 219 & 167 of IPC and Section 154(1)(2) https://hcservices.ecourts.gov.in/hcservices/ & (3) of Cr.P.C, 107 and 506(ii) IPC and Section 17 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(ii)(vI) and (vii) and Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also an offence punishable under Section 10 of the Protection of Civil Rights Act, 1955 r/w 156(3) Cr.P.C. The sole accused therein is one Mr.M.Ashok Kumar, who was the then Superintendent of Police, Vellore District at the time of alleged occurrence who had been transferred and functioning as Superintendent of Police in 'Q' Branch, Chennai at the time of registration of the case on 04.07.2007. 6. Cr.No.20/2007 was registered for alleged offences under sections 221, 119, 166, 218, 219 & 167 of IPC and Section 154(1)(2) & (3) of Cr.P.C, 107 and 506(ii) IPC and Section 17 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(ii)(vI) and (vii) and Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also an offence punishable under Section 10 of the Protection of Civil Rights Act, 1955 r/w 200 and 156(3) Cr.P.C. The sole accused therein is one Mr.M.Ashok Kumar, who was the then Superintendent of Police, Vellore District at the time of alleged occurrence who had been transferred and functioning as Superintendent of Police in 'Q' Branch, Chennai at the time of registration of the case on 04.07.2007. 7. Cr.No.21/2007 was registered for alleged offences under sections 221, 218, 119, 166, 167, 406, 107 and 506(ii) IPC and Section 3(ii)(vi) and (vii) and Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also an offence punishable under Section 10 of the Protection of Civil Rights Act, 1955 r/w Section 200 Cr.P.C and 156(3) Cr.P.C. The sole accused therein is one Mr.Pattabi, who was the then Deputy Superintendent of Police, Vellore Sub-division at the time of alleged occurrence who had been transferred and functioning as Deputy Superintendent of Police, Katpadi at the time of registration of the case on 04.07.2007. 8. Cr.No.22/2007 was registered for alleged offences under sections 221, 107 and 506(ii) IPC, Section 154(1) & (2) Cr.P.C and Section 17 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(ii)(vi) and (vii) and Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also an offence punishable under Section 10 of the Protection of Civil Rights Act, 1955 r/w 200 and 156(3) Cr.P.C. The sole accused therein is one Mr.M.Ashok Kumar, who was the then Superintendent of Police, Vellore District at the time of alleged occurrence who had been transferred and functioning as Superintendent of Police in 'Q' Branch, Chennai at the time of registration of the case on 04.07.2007. 9. Contending that the police officer who has been appointed as Investigating Officer in all those cases has not conducted investigation properly which will be seen from the fact that till https://hcservices.ecourts.gov.in/hcservices/ date no final report has been filed as evidenced by the endorsement made by the court concerned on the copy applications filed by the petitioner in all those cases, the petitioner has prayed for an order transferring the investigation to the Central Bureau of Investigation. It is also the contention of the petitioner that the accused being higher police officials, the Investigating Officer has not chosen to conduct proper investigation and is bent upon closing the case as mistake of fact as it was done in respect of the other cases forming the basis of the complaint in each one of the cases on hand. 10. The first respondent herein is the Director General of Police, second respondent herein is the Superintendent of Police, Vellore District, the third respondent herein is the Inspector of Police, District Crime Branch, Vellore and the fourth respondent is the Director, Central Bureau of Investigation. Initially, one Ramadoss, Additional Superintendent of Police (Crime), Vellore District filed a counter affidavit on behalf of the second respondent, namely the Superintendent of Police. Subsequently, Thiru.N.Arivuselvan, the Superintendent of Police, Vellore District filed a counter affidavit on behalf of the first and second respondents. Lastly, the first respondent/Director General of Police filed a separate counter affidavit on 07.08.2009. 11. The submissions made by Mr.R.Sankarasubbu, learned counsel for the petitioner in all these petitions, by Mr.Kumaresan, learned Additional Public Prosecutor representing Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) for respondents 1 to 3 and by Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI cases for R4 were heard. The petitions, affidavits filed in support of the petitions, counter affidavits, typed set of papers and the documents produced by the respondent were also perused. 12. All these petitions have been filed under Section 482 Cr.P.C seeking orders directing transfer of Cr.Nos.17/2007 to 22/2007 registered on the file of District Crime Branch, Vellore (Cr.Nos.17 and 21/2007 against Thiru.Pattabi, the then Deputy Superintendent of Police, Vellore Sub-division and Cr.Nos.18 to 20 and 22/2007 against Thiru.M.Ashok Kumar, the then Superintendent of Police, Vellore district) to the file of Central Bureau of Investigation for proper investigation. At the outset, this court is constrained to point out the fact that the common affidavit filed in support of the petitions is unwieldy running to twenty pages and this court is not in a position to comprehend fully the exact averments made by the petitioner in his common affidavit. It is full of mistakes besides being unwieldy containing unnecessary and unreasonable repetitions. Even the notes of arguments submitted on behalf of the petitioner reflects the very same features. However, it is not a case in which the petitioner has sought for an order directing the police to register a case based on his complaint. It is also not a case wherein the accused have filed the petitions seeking quashing of the proceedings. https://hcservices.ecourts.gov.in/hcservices/ 13. Of course the cases were registered not based on the complaints submitted by the petitioner to the higher police officials, but only after a direction was issued by the Chief Judicial Magistrate/Judicial Magistrate in each one of the cases forwarding the complaint preferred by the petitioner, to the District Crime Branch for registration of a case and investigation. It is a fact that can be noticed from each one of the FIRs that there was mechanical registration of the cases without application of mind to the penal provisions attracted by the allegations made in the complaint. However, we are not concerned with the same in these petitions because already cases have been registered and there is no petition seeking quashing of the FIRs on the ground that FIRs were registered without application of mind. 14. The only question that arises for consideration in all these cases is "whether the appointment of Investigating Officer in each one of the cases is in accordance with Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 and whether it shall be in the interest of justice to change the Investigating Officer?" 15. Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 deals with the rank of the officer who shall investigate an offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It reads as follows:- 7. Investigating Officer. - (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a 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 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 to 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. https://hcservices.ecourts.gov.in/hcservices/ 16. The rule makes it clear that any offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 shall be investigated by a police officer not below the rank of Deputy Superintendent of Police. Whether all police officers in the rank of Deputy Superintendent of Police and above is competent to be appointed as the Investigating Officer? The answer to the said question is "NO". The Investigating Officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account the officer's 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. Rule 12 enumerates the steps to be taken by the District Administration when an atrocity under the Act is reported. Rule 12 (3) states that the Superintendent of Police, after spot inspection, shall immediately appoint an Investigating Officer,deploy such police force in the area and take such measures as he may deem proper and necessary. If the Superintendent of Police fails to appoint the Investigating Officer, then the Director General of Police or the State Government shall appoint the Investigating Officer. 17. A difficulty experienced by the concerned officials in cases involving offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for appointment of Investigating Officers in each and every case has been pointed out on behalf of the respondents 1 to 3. It is contended on behalf of the respondents 1 to 3 that it is not necessary to appoint an Investigating Officer in each and every case separately and that the State Government, Director General of Police or the Superintendent of Police can pass a general order directing investigation of such cases by prescribing which officer should investigate the case arising within a particular area. Of course the said contention seems to be quite appealing and in the absence of any specific prohibition for passing such general orders prescribing the officers who shall investigate such cases arising within a particular area, we cannot express an opinion that such orders are not within the scope of Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. Therefore, this court has to accept the contention of the learned Government Advocate (Crl. Side) that it is permissible for the Government/Director General of Police/Superintendent of Police concerned to pass general orders prescribing the officers who shall investigate the cases arising from a particular area. But the mere fact that such orders are permissible will not permit passing of orders which will defeat the very purpose for which such rule has been framed. A conjoint reading of Rule 7(1) and Rule 12(3) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 will make it clear that it is desirable that the appointment of Investigating Officer is made case-wise. However, as pointed out supra, it is permissible that general orders prescribing the officers by whom cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 arising https://hcservices.ecourts.gov.in/hcservices/ within a particular area are to be investigated may be issued. 18. The learned Additional Public Prosecutor referred to a circular issued by the Director General of Police in Rc.No.116040/Cr.3(1)/98 dated 27.01.1998 and submitted that by the said Circular, the cases registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were directed to be investigated only by the jurisdictional sub-divisional officers as already instructed in an earlier circular memo Rc.No.244989/1 Cr. 3(2)/96 dated 03.12.1996. Previously in the circular memo dated 03.12.1996, the Director General of Police had directed the cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to be investigated by the respective sub-divisional officers. Subsequently, by another circular memo Rc.No.244989-2/Cr.3(2)/97 dated 17.03.1997 it was directed that all the cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the District should be investigated by the Deputy Superintendent of Police, District Crime Branch and if the post of Deputy Superintendent of Police, District Crime Branch was vacant, the Deputy Superintendent of Police of head quarters sub-division of the concerned district should be ordered to investigate the cases registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Again by Rc.No.116040/Cr.3 (1)/98 dated 27.01.1998, the Rc.No.244989-2/Cr.3(2)/97 dated 17.03.1997 was cancelled and the procedure prescribed in Rc.No.244989/1 Cr. 3(2)/96 dated 03.12.1996 has been restored. 19. Almost in all the three circular memos, the one aspect stressed in Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 has been neglected and rather given a go-bye in so far as the requirement of considering the 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, is not taken into consideration in directing the appointment of the Deputy Superintendent of Police of the sub-division concerned or the Deputy Superintendent of Police, District Crime Branch and the Deputy Superintendent of Police, District head quarters sub-division to be the investigating officers. In the circular dated 03.12.1996 which has been restored by the circular memo dated 27.01.1998, the jurisdictional sub- divisional officers (DSPs/ASPs) are directed to be appointed as the investigating officers in all cases of offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 arising within the sub-division, without taking into consideration the above said qualities of the officers for being appointed as the investigating officers in the said cases. Such circular memos cannot have the effect of overriding the statutory rule framed under the Act which was later on approved by the parliament. Therefore, unless the vital defect found in the above said circulars is removed, the directions in the circular memo will result in violation of Rule 7(1) which will ultimately affect the prosecution case itself. https://hcservices.ecourts.gov.in/hcservices/ 20. There is nothing in the circular memo to show that the qualities of the police officers to be appointed as Investigating Officers to investigate the offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were taken into account before issuing such general direction. The circular memo also does not enjoin a duty on the Superintendents of Police to consider the qualities of the jurisdictional sub-divisional officer concerned before appointing such sub-divisional officer as the investigating officer to investigate the offences punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. As pointed out supra, the circular memo issued by the Director General of Police, one of the authorities competent to appoint investigating officers in cases involving commission of offences punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot override the statutory rule framed by the rule making authority and approved by the parliament, namely Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. To the extent indicated above, the circular memo issued by the Director General of Police suffers from an infirmity. Therefore, this court is of the considered view that the circular memo bearing Rc.No.244989/1 Cr. 3(2)/96 dated 03.12.1996 directing investigation of the offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the jurisdictional sub-divisional police officers, circular memo Rc.No.244989-2/Cr.3(2)/97 dated 17.03.1997 directing investigation of such offences by the Deputy Superintendent of Police, District Crime Branch or, in case of vacancy of the said post, by the sub-divisional officer of the District Head quarters and circular memo Rc.No.116040/Cr.3(1)/98 dated 27.01.1998 again restoring the earlier position as per circular memo Rc.No.244989/1 Cr. 3(2)/96 dated 03.12.1996, are not in conformity with Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 in its letter and spirit and hence the said circulars are to be held ultravires Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. 21. In the cases on hand, it is the contention of the respondents 1 to 3 that the cases were investigated by the Investigating Officers appointed in accordance with circular memo Rc.No.244989-2/Cr.3(2)/97 dated 17.03.1997. In fact the Deputy Superintendent of Police, District Crime Branch, Vellore has been appointed as the Investigating Officer in all six cases. The petitioner, in his affidavit, has pointed out the fact that the appointment of the Investigating Officer in all these cases was not in conformity with Rc.No.244989/1 Cr. 3(2)/96 dated 03.12.1996, which was restored by Rc.No.116040/Cr.3(1)/98 dated 27.01.1998. It is the contention of the petitioner that long after Rc.No.244989- 2/Cr.3(2)/97 dated 17.03.1997 was superseded by Rc.No.116040/Cr.3 (1)/98 dated 27.01.1998, the Deputy Superintendent of Police, District Crime Branch, Vellore was appointed as the Investigating Officer in all these cases which is against the latest circular memo of the Director General of Police in Rc.No.116040/Cr.3(1)/98 dated 27.01.1998. All these cases were registered in 2007. The https://hcservices.ecourts.gov.in/hcservices/ circular memo bearing Rc.No.244989-2/Cr.3(2)/97 dated 17.03.1997 directing investigation of the offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the Deputy Superintendents of Police, DCB in the districts and by the Deputy Superintendent of Police of Head Quarters sub-division of the district if the Deputy Superintendent of Police, District Crime Branch post is vacant, was superseded by circular memo Rc.No.116040/Cr.3(1)/98 dated 27.01.1998. By the latest circular memo investigation of such offences by the concerned jurisdictional sub-divisional police officers (Deputy Superintendent of Police/Assistant Superintendent of Police) has been directed. From the same, it is quite obvious that the appointment of the Deputy Superintendent of Police, District Crime Branch, Vellore as Investigating Officer in all these cases was also not in tune with the circular memo issued by the Director General of Police. As this court has held supra that all the above said circular memos are not in conformity with the statutory rule, namely 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 and hence they are ultravires the said rule, specific order appointing Investigating officer in each case should have been made. 22. In these cases there is nothing to show that the Deputy Superintendent of Police, District Crime Branch was appointed as the investigating officer either by the State Government or by the Director General of Police or by the Superintendent of Police, after considering the qualities of the officer holding such post. When the statutory rule requires consideration of the qualities of the officer mentioned in the rule for being appointed as Investigating Officer in a case involving commission of offences under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it refers to the qualities of an individual officer by name and not an officer by designation capable of referring to the person whoever might be appointed to that post. Therefore, the appointment of the Deputy Superintendent of Police, District Crime Branch, Vellore as Investigating Officer in all these cases is to be held not in accordance with Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. On the above said score alone, it has become necessary to issue a direction to the respondents to appoint a new investigating officer in accordance with Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. 23. The mere fact that the appointment of the Investigating Officer was improper and not in accordance with the statutory rule, shall not be enough to come to a conclusion that the prayer sought for by the petitioner for transferring the investigation to the file of CBI is to be granted. On the other hand, after considering the facts and circumstances of these cases and the relevant statutory provisions and statutory rules, this court is of the considered view that the prayer made by the petitioner for transferring the investigation of these cases to the file of CBI has got to be rejected while holding at the same time that the