Lala Saurabh Verma v. 1. The State of Jharkhand. 2. Sunil Kumar
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(Cr.) No. 122 of 2020 ---- Lala Saurabh Verma. Versus 1. The State of Jharkhand. 2. Sunil Kumar ---- .…..Petitioner ….Respondents Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY For the Petitioner For the State For the Respondent No.2
Legal Reasoning
The petitioner had earlier moved this Court in W.P.(Cr) No. 303 of 2018,
Arguments
: Mr. Mahesh Tewari, Advocate : Mr. Dipankar, A.C. to G.A. III : Mr. Vikash Kumar, Advocate -------- -------- 05/7.2.2023 Heard the parties. In this writ petition, the petitioner has prayed for sending to this Court the records appertaining to Sector IV S.C./S. T. P.S. Case No. 8 of 2018 registered against the petitioner for the offences punishable under sections 406, 420, 504, 506/34 IPC, under section 25(1-A) of the Arms Act and under section 3(x) of the SC/ST(Prevention of Atrocities)Act. The petitioner has further prayed for quashing of the entire criminal proceedings including the order dated 24.9.2019, passed by the learned Special Judge, Bokaro, whereby and whereunder while disagreeing with the final report submitted by the police, cognizance has been taken for the offences punishable under sections 417, 504, 506/34 of IPC and Section 3(1)(r) (s) of the SC/ST Prevention of Atrocities Act.
Decision
which however was disposed of on 5.12.2018 as final report had been submitted by the police. Subsequently, after taking of cognizance on 16.11.2018, one of the accused had again moved this Court in Cr.M.P. No. 48 of 2019 and since the impugned order dated 16.11.2018 did not contain appropriate reasons, while differing with the final form submitted by the police, the matter was remanded back to the learned court below and by order dated 24.9.2019, by giving reasons, cognizance was once again taken under sections 417, 504, 506/34 of IPC and Section 3(1)(r) (s) and 3(2)(va) of the SC/ST Prevention of Atrocities Act. It has been submitted by Mr. Mahesh Tiwary, learned counsel for the petitioner, that there has been an inherent defect in the investigation itself as the investigation was carried out by the Sub Inspector of Police, who was not authorized in terms of Rule 7 of the SC/ST Prevention of Atrocities Rules. Learned counsel submits that the final form was submitted by the Deputy Superintendent of Police indicating that it was a civil dispute but the entire investigation into the case was carried out by the Sub Inspector of Police. -2- Learned counsel has further stated that Rule 7 of the SC/ST Prevention of Atrocities Rules was circumvented by the State Government by issuing a notification authorizing persons above the rank of Assistant Sub Inspector of Police to carry out the investigations under the SC/ST Prevention of Atrocities Act, which was subsequently recalled in the year 2018 but in view of the overriding effect of Rule 7 of the SC/ST Prevention of Atrocities Rule, no person below the rank of a Deputy Superintendent of Police could have investigated into an offence punishable under the SC/ST Prevention of Atrocities Act. He thus submits that the order taking cognizance dated 24.9.2019, which was consequent to an order of remand passed by this Court with respect to co- accused persons in Cr.M.P. No. 48 of 2019 deserves to be quashed and set aside. Mr. Vikash Kumar, learned counsel appearing for the respondent no. 2, has brought to the notice of the Court the notification contained in Memo No. 5165 dated 22.11.2012, in which authorization was given to the officers in the rank of Inspector and Sub Inspector of Police to investigate the cases under the SC/ST Prevention of Atrocities Act in view of the excessive number of cases, which were instituted. It has been stated that the said notification was subsequently recalled by the State of Jharkhand vide notification dated 10.7.2018 which in effect would mean that from 22.11.2012 till the recall of the said notification on 10.7.2018, the Sub Inspector of Police as well as the Inspector of Police were authorized to carry out investigations under the Act and only after 10.7.2018, effect could be given to Rule 7 of the Rules. Learned counsel further submits that the investigation into the offence alleged by the respondent no.2 in the FIR was within the period when the notification dated 22.11.2012 was in operation and therefore learned counsel for the petitioner cannot take a plea with respect to the jurisdiction of the Investigating Officer in carrying out the investigation. In support of such contention, learned counsel for the respondent no. 2 has relied upon the case of Chand Rasid Vs. State of Jharkhand reported in 2015 SCC Online Jhar 2636 wherein this issue was under consideration and it was held therein that in view of the notification of the State of Jharkhand, Rule 7 of the SC/ST Prevention of Atrocities Rules does not have any application. The only question, which has been raised by the learned counsel for the petitioner, is with respect to the jurisdiction of the Investigating Officer to investigate Sector IV S.C./S. T. P.S. Case No. 8 of 2018 , which submission has been controverted by the learned counsel for the respondents who have submitted in unison that the power to investigate an offence under the SC/ST -3- Prevention of Atrocities Act flowed from the notification issued by the State Government on 22.11.2012. Section 9 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989 deals with conferment of power and the same reads as under:- 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 do,— (a) for the prevention of and for coping with any offence under this Act, or (b) for any case or class or 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 part thereof or, as the case may be, for such case or class or group of cases, and in particular, 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). It therefore conferred upon the State Government that in case of necessity, a notification was to be published demarcating the police officers under the Code to exercise the powers of arrest investigation and prosecution of person before any Special Court. Section 9 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act cannot be read in isolation as Rule 7 of the SC/ST Prevention of Atrocities Rules precludes any police officer below the rank of a Deputy Superintendent of Police to investigate into an offence under the SC/ST Prevention of Atrocities Act. Therefore Section 9 of the Act has to be read in consonance with Rule 7 of the Rules and only thereafter could a notification be issued by the State Government conferring powers upon the concerned police officials for arrest, investigation and prosecution of any person in the spirit of the Act and the Rules. In the present case, as has been stated in the counter affidavit filed by the respondent no. 2, the notification of the State Government dated 22.11.2012, subsequently was recalled vide Notification dated 10.7.2018. Infact, the notification bearing no. 3812 dated 10.7.2018 enhances the submission of the learned counsel for the petitioner as the contents of the said notification virtually accepts the provisions of Rule 7 of the Rules while conferring powers upon the Deputy Superintendent of -4- Police to investigate into an offence under the SC/ST Prevention of Atrocities Act. So far as the order dated 24.9.2019 is concerned, the same contains reasons which led the learned court below to take cognizance on the order dated 6.6.2018 having been set aside in Cr.M.P. No. 48 of 2019 but the impugned order does not at all consider the powers/jurisdiction of the Investigating Officer to investigate into an offence under the SC/ST Prevention of Atrocities Act. As has been recorded above, the Investigating Officer (Sub Inspector of Police) was precluded from investigating into an offence under the SC/ST Prevention of Atrocities Act, which had been instituted by the respondent no. 2 in connection with Sector IV S.C./S. T. P.S. Case No. 8 of 2018 and in such view of the matter therefore the order dated 24.9.2019, passed in S.C./S.T. P.S. Case No. 12/2018 is hereby quashed and set aside so far as the cognizance, which has been taken under sections 3(1)(r) (s) and 3(2)(va) of the SC/ST Prevention of Atrocities Act is concerned. With respect to the other offences of which cognizance has been taken, there is no bar for the learned court below to proceed with the said offences in accordance with law. This writ petition stands disposed of. Rakesh/- (Rongon Mukhopadhyay, J)