Back
IN THE HIGH COURT OF BOMBAY
D.G. Deshpande, J.
Ramnath Sadashiv Koltharkar ..... Applicant
Versus
The State of Maharashtra ..... Respondent.
Criminal Writ Petition No. 9 of 1998, decided on 10-12-1998.
Advocates appeared :
V.D. Bichu with R.P. Parbat and P.P. Parbat, for the applicant.
M.P. Galeria, A.P.P., for the State.
Held, that the provisions of Section 9 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 are mandatory nature. The intention of the Legislature is that the offences under the Act are investigated by senior officers of the rank of Deputy Superintendent of Police. However, merely holding that post does not qualify the officer to get powers to investigate offence. Under Rule 7 only that Deputy Superintendent of Police, who is appointed by the State Government or Director General of Police or Superintendent of Police gets powers for investigation. The circular dated 24.6.1997 issued by the Commissioner of Police was of no help to the prosecution as the Commissioner of Police was not authorised by the Act to issue such circular nor had be any authority to do so. As objection was raised even before framing of the charge, no question of proving prejudice arose. Proceedings against accused under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 quashed. The order however will have no effect on the prosecution of the accused under Sections 353 and 504 of the Indian Penal Code. AIR 1964 SC 28; 1971 Cri LJ 1153, Distinguished.
Section 9-Rules framed thereunder, Rule 7-Investigation - Mandatory provision regarding-Investigation to be carried out by officer not below rank of Deputy Superintendent of Police Investigation carried out by Police Inspector, as in present case, illegal.- The accused has even before framing of the charge raised the objection to the patent illegality in the investigation. It cannot, therefore, be said that even if the accused raises such an objection the same should be turned down on the ground that there is no prejudice caused to the accused. If the Act has provided and has made it mandatory that the investigation is to be carried out by the officer not below the rank of Deputy Superintendent of Police and when on the face of it, in the instant case the same has been done by the Police Officer of the rank of P.I. then the accused has a right to raise objection regarding illegality in the investigation. No question of proving prejudice arises when such objection is raised even before framing of the charge.
2. The petition is filed for quashing the order of the Special Judge (U.D. Salvi), Mumbai, dated 4-12-1997 by which he rejected the application of the accused petitioner which was filed for discharge.
3. Mr. Bichu contended that the accused was charge-sheeted for offences under the provisions of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, hereinafter referred to as the "Act of 1989". The alleged offence took place on 3-4-1997. F.I.R. was filed on 28-4-1997. Investigation was completed and last statement was recorded on the same date i.e. 28-4-1997 and charge sheet came to be filed in August, 1997. According to him the accused had claimed discharge on a purely legal ground arising from the provisions of the Act of 1989 itself. He urged that under section 9 of the said Act of 1989, it was for the State Government to appoint any officer of the Government with powers under this Act for the purpose of carrying out investigation in respect of the offences under this Act and the State Government could confer such powers by notification in Official Gazette. However, according to him section 23 of the Act of 1989 gives powers to the Central Government to make rules for carrying out the purposes of this Act and these rules are to be published by notification in Official Gazette. Accordingly, rules have been framed by the Central Government and they are in force from 31-3-1995. The Act came in force in January 1990 and from 1990 to 31-3-1995 the offences under the Act could be investigated by any police officer. According to Mr. Bichu the situation has changed after rules came into force and by virtue of Rule 7 it has been specifically directed that offences shall not be investigated by any police officer who is below the rank of Deputy Superintendent of Police who is equivalent to the Assistant Commissioner of Police in Mumbai.
4. According to Mr. Bichu Rule 7 is mandatory and investigation of any offence under this Act has to be done by police officer not below the rank of the Deputy Superintendent of Police. However, according to him the investigation in the instant case was done by P.S.I. and therefore the whole investigation was vitiated by virtue of the aforesaid relevant provisions of the Act. However, his contention was negatived by the Special Judge and hence this petition.
5. On the other hand it was contended by learned A.P.P. that the Special Judge rightly relied upon the circular issued by the Commissioner of Police on 24-6-1997 under which officer-in-charge of the police station have been empowered to carry out investigation for the offences under this Act. The learned A.P.P. further contended that all the papers of the investigation in the instant case were scrutinised and verified by the superior officers and therefore there was no illegality committed. He also contended that the accused cannot claim discharge on the ground of illegality in the investigation unless the accused succeeds in proving that he has ben seriously prejudiced in his defence. Further, he contended that along with offences under this Act of 1989 the accused are also charge-sheeted for offences under section 353 and 504 of the I.P.C. Lastly, A.P.P relied upon two Judgments of Supreme Court reported in A.I.R. 1964 S.C. 28 (Munnalal v. State of Uttar Pradesh)1, and 1971 Cri. L.J. 1153 (Muni Lal v. Delhi Administration.)2.
6. So far as the provisions of section 9 and 23 and rule 7 are concerned, there cannot be any dispute that powers to carry out investigation or for implementing the provisions of the Act of 1989 can only be conferred by the State Government on any officer by publication of a notification in the Official Gazette. It is also clear from the provisions of section 23 that the Central Government is empowered to frame rules for carrying out the purposes of this Act and those rules were accordingly framed and brough
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
