JUDGMENT - PARKAR S.S., J.:---Rule. By consent rule is made returnable forthwith. Respondents waive service. Heard the Counsel.

2.The present petition is placed before this Bench pursuant to the reference made by the learned Single Judge of this Court by the order dated 11th December, 2001 on the ground that there is conflict of decisions in the judgments delivered by the two learned Single Judges of this Court, one in the case of (Ramnath Sadashiv Koltharkar v. State of Maharashtra)1, reported in 1999(5) Bom.C.R. 255, and the other in the case of (Yunus Daud Bhura v. State of Maharashtra)2, reported in 2002 Bom.C.R.(Cri.) (N.B.)383. Before both the courts the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Rule 7 of the Rules of 1995 framed under the said Act were under consideration. Rule 7 was framed by the Central Government whereby it is provided that an offence committed under the provisions of the above Act shall be investigated by a Police Officer not below the rank of the Deputy Superintendent of Police. In the first case it was held by D.G. Deshpande, J., that the said rule is mandatory and non-compliance thereof vitiated the entire investigation. The charge-sheet filed on the basis of investigation by the officer lower in rank than the Competent Officer i.e. Dy. S.P. was quashed and set aside. In the second case Batta, J., held that the investigation cannot be said to have been vitiated for non-compliance with the mandatory provisions unless prejudice is shown in which case appropriate orders can be passed for re-investigation as may be called for, wholly or partly, but the prosecution need not be quashed.

3.In view of the aforesaid conflict of the decisions, when the present petition appeared before Mrs. Tahilramani, J., for admission, the same was referred to the Division Bench to resolve the said conflict.

4.The present matter arises in the following circumstances:

The petitioner had lodged F.I.R. with Dahanu Police Station under section 3(1)(x) of the Act of 1989 against the respondent No. 4 for insulting and humiliating the petitioner by referring to his caste. The offence was registered under C.R. No. 101/1998 on 21-11-1998. The investigation was made by the Police Officer of the rank of Sub-Inspector of Police and after completion of the investigation charge-sheet was filed on 31st December, 1998 and the case was committed to the Court of the Additional Sessions Judge, Palghar being Sessions Case No. 133 of 2001.

5.It is the case of the petitioner that after the judgment of this Court in Ramnath Koltharkars case was delivered taking the view that if the investigation is made by any officer below the rank of the Deputy Superintendent of Police, the investigation is illegal and the prosecution is liable to be quashed, the respondent No. 2 i.e. the Special Director General of Police issued a circular dated 26th March, 1989 to his subordinates circulating the said judgment and directing them that the investigation in the offence under the above Act should be done by the Police Officer not below the rank of the Dy. S.P. When the petitioner learnt about the same, he addressed a letter dated 30th July, 1999 to the Dy. S.P., Dahanu Division, requesting him to reinvestigate his complaint as the charge-sheet in the case was filed by the P.S.I. The said letter was replied to the petitioner on 7th March, 2000 stating therein that the charge-sheet is already filed in the case and the matter is sub-judice and, therefore, the Dy. S.P. could not do anything in the matter.

6.Thereafter the respondent No. 4, the original accused, made an application dated 31st July, 2001 before the trial Court for discharge relying on the judgment of this Court delivered in Ramnath Koltharkars case (supra). The Additional Sessions Judge after hearing both the sides by his impugned order dated 6-8-2001 allowed the said application in the light of the ratio of the decision of this Court in Koltharkars c

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