JUDGMENT

B. P. DAS, J. — This application under Sec. 482 of the Code of Criminal Procedure calls in question the legality and validity of the order dated 5.2.2002 passed by the Sub-Divisional Magistrate, Bhadrak, in G.R.Case No. 154 of 2001 refusing to recall the order taking cognizance of the offences alleged to have been committed by the petitioners under Secs. 341/323/294/506/34 of the Indian Penal Code (‘I.P.C.’ in short) and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter called the ‘Act’).

2. The petitioners in the aforesaid G.R.case filed an application to recall the order taking cognizance against them mainly on the ground that the investigation of the case had not been done in accordance with Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (“the Rules’ in short). The learned S.D.J.M. by the impugned order has rejected the said application with the following observations :

“....... On perusal of the C.D. it appears that the D.S.P. Shri B.K.Jena has been appointed by the S.P., Bhadrak to take charge of the investigation of this case who has submitted the charge-sheet under Sec. 341/323/294/506/34, IPC and 3 of the S.C. and S.T. (P. & A.) Act. The I.O. has also enclosed the copy of the Caste Certificate issued from the office of the Tahasildar, Tihidi. In the facts and circumstances, the grounds advanced by the defence are not entertainable and accordingly the petition to recall the order of cognizance is devoid of any merit and it is rejected.”

3. Upon hearing Shri D.P.Dhal, learned counsel for the petitioners, by order dated 14.5.2001 I directed the concerned Deputy Superintendent of Police to file an affidavit indicating whether the case was investigated by him as per the mandate of Rule 7 of the Rules and pursuant to such direction, an affidavit has been filed by Shri P.K.Jena, Dy. Superintendent of Police, Bhadrak. The learned State Counsel has also produced the case diary for my perusal.

The Dy. Superintendent of Police in his aforesaid affidavit has disclosed :

“4. That it is respectfully submitted that on the basis of the report of Prafulla Mallik, the Sub-Inspector namely Purusottam Tripathy registered the case vide Tihidi P.S.Case No. 16/2001 and took up investigation. After receiving VHF message from the Superintendent of Police, Bhadrak, vide Message No. 566/HRPC wherein it was instructed to hand over the case records to the Deputy Superintendent of Police, Bhadrak for investiga¬tion, the Officer-in-Charge, Tihidi Police Station handed over the up-to-date Case Diary and all connected papers to the present deponent on 25.5.2001.

It is humbly submitted that after receiving the up-to-date Case Diary and all connected records from the O.I.C., Tihidi, and instruction from the Superintendent of Police, Bha¬drak the deponent took up investigation. After completion of the investigation the deponent submitted final charge sheet on 14.6.2001, bearing Charge sheet No. 78 dated 14.6.2001 under Sec. 341/323/294/506/34, IPC and 3 SC/ST (PA) Act against Basanta Das, Sunu @ Ranjit Das, Suryamani Sahu and Bhagirathi Mahalik all of village Hatuari, P.S.Tihidi, in the District-Bhadrak to face their trial in the Court of law.”

Although in the affidavit the Dy. Superintendent of Police has stated that after receiving the up-to-date case diary and all connected records from the O.I.C., Tihidi P.S., he took up inves¬tigation of the case and after completing the investigation filed the charge-sheet on 14.6.2001, in the case diary produced by the learned State Counsel the Dy. Superintendent of Police noted on 25.5.2001 and 6.6.2001 as follows :

25.5.2001 “Took charge of investigation of the case from S.I., P. Tripathy, OIC, Tihidi P.S., along with the connected papers as per V.H.F. message No. 656/HRPC. Dt. 14.5.2001, S.P., Bhadrak. I will take further action in the case after perusal of records prepared by the previous I.O..

Closed t