9911796707
TMI Blog2017 (3) TMI 1803X X X X Extracts X X X X X X X X Extracts X X X X ..... THAT:- The non obstante clause, extended to the State Government, power to overlook and provide differently, from the position contemplated under the SCST Act, as well as the SCST Rules. The issue whether the State Government was competent to relax the above rule, requiring that investigation be not carried out, by an officer below the rank of Deputy Superintendent of Police, and thereby, extend the power of investigation to officers below the rank of Deputy Superintendent of Police, has therefore to be answered in the affirmative - not only Rule 7 of the SCST Rules, but also the notification dated 03.06.2002, issued by the State Government, in exercise of the power vested in it Under Section 9(1)(b) of the SCST Act. The legal position as has been declared by this Court, is in complete consonance and conformity with the postulation contained in Section 465 of the Code of Criminal Procedure. This being the position, we have no hesitation in holding, that the second determination rendered by the High Court, to the extent that the investigation carried out by a police officer below the rank of a Deputy Superintendent of Police, after 31.03.1995 and prior to the issuance of the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en years or upwards and with fine; (iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine; (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine; (va) commits any offence specified in the Schedule, against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or with fine, or with both. (emphasis is ours) It was submitted, that the consequences under the 'SCST Act' are far more serious and drastic, than the consequences contemplated under the Indian Penal Code. It was therefore, the vehement contention of the learned Counsel for the Appellant-accused, that the provisions of the 'SCST Act', insofar as the investigative process is concerned, should be interpreted strictly (-and not liberally). And for the above purpose, it was submitted, that the investigative process needed to be placed in the hands of the highest authority possible, in consonance with the Rules framed by the Central Government. Any determination to the contrary, it was pointed out, would be contrary to the legislative intent, as well as, the serious and harsh consequences, of any violation of the provisions of the 'SCST Act'. 4. Before we endeavour to deal with the controversy in hand, it would be appropriate to extract here under, the conclusions drawn by the High Court, in the impugned order. The final determination of the High Court was rendered in the following words: For the aforesaid reasons, we declare that the impugned Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid rules, clearly vested the investigative authority, for offences under the 'SCST Act', with an officer-not below the rank of a Deputy Superintendent of Police. Rule 7 of the 'SCST Rules' is reproduced below: 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, submit the report to the Superintendent of Police, who in turn shall immediately forward the report to the Director General of Police or Commissioner of Police of the State Government, and the officer-in-charge of the concerned police station shall file the charge sheet in the Special Court or the Exclusive Special Court within a period of sixty days (the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid notification was issued on 03.06.2002. The notification is available on the record of the appeals preferred by the State Government, as Annexure P1. The notification (-dated 03.06.2002), was published on 09.08.2008. It read as under: No.-3/YA-80-26/2002-H(p)-6104-In exercise of the powers conferred by Section 9(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (No. 33 of 1989) and having regards to the number of cases filed under this Act, the State Government authorises all the officers of the rank of Police Inspector, Sub-Inspector of Police and Assistant Sub-Inspector of Police to investigate the cases filed under this Act within the State of Bihar with effect from 31st March 1995, the date of coming into force of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 made under this Act. (emphasis is ours) A perusal of the notification extracted above reveals, that Rule 7 of the 'SCST Rules' (framed by the Central Government), which required all investigations in matters arising under the 'SCST Act', to be carried out by an officer not below the rank of Deputy Superintendent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the 'SCST Act', we are satisfied, that in the exercise of its Rule making authority, the Central Government was fully competent and justified, in requiring that the investigative process be conducted by an officer not below the rank of a Deputy Superintendent of Police. The Central Government had the jurisdiction of framing rules, and the Central Government had exercised its jurisdiction within the framework of the authority vested in it. We therefore hereby affirm the validity of Rule 7 of the 'SCST Rules'. 13. The next issue that arises for consideration is, whether the notification issued by the State of Bihar dated 03.06.2002, in exercise of the power vested in the State Government, Under Section 9 of the 'SCST Act', can be considered to have been exercised in breach of, or in excess of the power delegated to the State Government. It was the contention of the learned Counsel for the Appellant-accused, that Section 9 contemplates the possibility of extending the powers of arrest, investigation and prosecution (-of persons, alleged to have violated the provisions of the 'SCST Act'), in addition to those already provided for under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f prosecution), in respect of offences under the 'SCST Act', ... to any officer of the State Government... , as the State Government may consider necessary , ...for the prevention of and for coping with any offence... under the 'SCST Act'. The power vested with the State Government, Under Section 9 of the 'SCST Act', was therefore clearly expansive, and was obviously intended to enlarge the zone of arrest, investigation and prosecution, to officers/officials in addition to those authorised to do so under the Code of Criminal Procedure. The power conferred on a State Government Under Section 9(1)(b), allowed the State Government to confer the power ... on any officer of the State Government ... . The power of delegation was not limited to police personnel only, but extended to any officer of the State Government, who may or may not belong to the Police Department. It is therefore not possible for us to accept the contention advanced by the learned Counsel for the Appellant-accused, founded on Sub-section (2) of Section 9 of the 'SCST Act'. 15. It is also necessary to take note of the legislative intent expressed in Section 9, in that, it exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s necessary to visualise, that the same were framed by the Central Government, for their implementation at the pan-India level. The Central Government, keeping in mind the harsh effect of any violation, of the provisions of the 'SCST Act', considered it expedient to require investigation to be carried out, by an officer not below the rank of Deputy Superintendent of Police. This exercise of authority, by the Central Government, cannot be assailed on the grounds of competence or legitimacy (as already concluded above). We, therefore, find no infirmity in the determination of the Central Government in vesting the investigative power, with reference to offences committed under the 'SCST Act', with an officer not below the rank of Deputy Superintendent of Police. It is therefore, that we express, and reiterate, our affirmation to the validity of Rule 7 of the 'SCST Rules'. 17. The question however is, whether the State Government, could in its discretion, in furtherance of the power vested with it Under Section 9 of the 'SCST Act', relax the provision made by Rule 7 of the 'SCST Rules'. 18. It is imperative to emphasise, that as against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;, as well as the 'SCST Rules'. The issue whether the State Government was competent to relax the above rule, requiring that investigation be not carried out, by an officer below the rank of Deputy Superintendent of Police, and thereby, extend the power of investigation to officers below the rank of Deputy Superintendent of Police, has therefore to be answered in the affirmative. 19. Having concluded as above, we are satisfied to uphold, not only Rule 7 of the 'SCST Rules', but also the notification dated 03.06.2002, issued by the State Government, in exercise of the power vested in it Under Section 9(1)(b) of the 'SCST Act'. Accordingly, we find no merit in the challenge raised on behalf of the Appellant accused, to the notification dated 03.06.2002. 20. We also find merit in the conclusion drawn by the High Court to the effect that the operative date of implementation of the notification dated 03.06.2002, would be the date of the publication of the above notification (i.e., 09.08.2008). Firstly, because there is no challenge to the above conclusion recorded by the High Court. And secondly, the instant exercise of power, cannot have retrospective effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve judgment, were expressed in the following manner: On the arguments urged before us two points arise for consideration. (1) Is the provision of the Prevention of Corruption Act, 1947, enacting that the investigation into the offences specified therein shall not be conducted by any police officer of a rank lower than a Deputy Superintendent of Police without the specific order of a Magistrate, directory or mandatory. (2) Is the trial following upon an investigation in contravention of this provision illegal. In order to invite the Court's attention to the conclusion(s) drawn in the above judgment (rendered by a three Judge Division Bench), our pointed attention was drawn to the following position, recorded in the above judgment: The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. (emphasis supplied) It was also the pointed contention of learned Counsel, that the legal position, as has been expressed in the above judgment, has remained unaltered. In this behalf, our attention was drawn to a recent judgment of this Court in Union of India v. T. Nathamuni (2014) 16 SCC 285, wherein the factual issue arose for consideration: 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.03.1995 and prior to the issuance of the notification dated 03.06.2002 (on 09.08.2008), would stand vitiated, has necessarily to be set aside. In our view, the above finding could have been returned only if, the concerned Court expressed its satisfaction, that the investigation carried out, by a subordinate police officer/official, who had no authority to investigate the matter, had caused prejudice to the accused, leading to miscarriage of justice. Since no such finding has been recorded, and since it has also not been established before this Court, that the Accused had suffered such prejudice, it is not possible for us, to sustain the above conclusion, of the High Court. The same is accordingly hereby set aside. 24. Having recorded our conclusions with reference to the second proposition, recorded in the preceding paragraph, it is necessary for us to take the issue canvassed on behalf of the State Government. In that, insofar as the facts and circumstances of the present cases are concerned, such a demonstration at the hands of the accused, will be inconsequential, inasmuch as, our having upheld the notification issued by the State Government, Under Section 9 of the 'SCS ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
