SC: Officer below the rank of DSP cannot act as Investigating Officer for offences under SC-ST Act, 1989 (Read Judgement)

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 123 OF 2020

(ARISING OUT OF SLP(CRL.) NO(S). 11369 OF 2019)

STATE OF MADHYA PRADESH ….APPELLANT(S)

VERSUS

BABBU RATHORE & ANR. ….RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. Leave granted.

2. This appeal is directed against the judgment of the High Court

of Madhya Pradesh dated 9th May, 2019 confirming Order of the

trial Judge dated 24th July, 2015 whereby the respondents have

been discharged from the offences under Sections 302/34, 404/34

of the IPC and Section 3(2)(v) of the Scheduled Castes and

1

Digitally signed by

RAJNI MUKHI

Date: 2020.01.17

16:20:23 IST

Reason:

Signature Not Verified

Scheduled Tribes(Prevention of Atrocities) Act, 1989(hereinafter

being referred to as “Act, 1989”) at the advanced stage of the trial

when almost all the material witnesses have been examined by the

prosecution which has given rise to this appeal.

3. The background facts in nutshell are that deceased Baisakhu,

in a drunken state met Kamla Prajapati on road to ward no. 10,

Pasia, Thana Anuppur, Anuppur, Madhya Pradesh. Kamla

Prajapati took him to his house, but the deceased Baisakhu stated

that he had to return two hundred fifty rupees to Nasru and

requested him to take to his place. Upon insistence of deceased

Baisakhu, Kamla Prajapati took him to the house of Nasru where

accused Babbu Rathore was drinking liquor. Baisakhu stated that

he wanted to have liquor so leaving him there, Kamla Prajapati

returned back. When Ujaria Bai, the wife of deceased, went to

house of Nasru to inquire about her husband, then Nasru told her

that deceased Baisakhu had left with Babbu Rathore. The dead

body of Baisakhu was recovered on 14th July, 2011. Information of

unnatural death was recorded by police and post-mortem on the

body of the deceased was conducted which proved death was

unnatural and caused by asphyxia due to strangulation.

4. The preliminary investigation confirmed that the deceased was

last seen with the present respondents. After registration of FIR,

investigation was conducted by the Sub-Inspector and charge-sheet

came to be filed against the present respondents for offences

punishable under Section 302/34, 404/34 of the IPC and Section

3(2)(v) of the Act, 1989. The trial Court took cognizance of the

matter and Special Case No. 37/11 was registered.

5. During proceedings in Special Case No. 37/11, statement of

the material witnesses PW 2 Narsu, PW 4 Kamla Prajapati and PW 5

Uparia Bai, wife of deceased Baisakhu were recorded. It appears

from the record that at the advanced stage of the trial, a grievance

was raised by the respondents that they had been charged under

Section 3(2)(v) of the Act, 1989 and since the investigation has been

conducted by an Officer below the rank of Deputy Superintendent

of Police which is the mandate of law as provided under Section 9 of

the Act, 1989 read with Rule 7 of Scheduled Castes and Scheduled

Tribes(Prevention of Atrocities) Rules, 1995(hereinafter being

referred to as the “Rules, 1995”), the very investigation is faulty and

illegal and that deserves to be quashed and set aside and in

consequence thereof, further proceedings in trial does not hold good

and respondents deserve to be discharged.

6. Learned trial Court, while taking note of Section 9 of the Act,

1989 and Rule 7 of the Rules, 1995 held that the investigation has

been conducted by an Officer below the rank of Deputy

Superintendent of Police and is without authority and illegal and in

consequence thereof, discharged the respondents not from the

charges levelled against them under the provisions of the Act, 1989

but also from the provisions of the IPC for which there was no

requirement of the investigation to be conducted by an Officer not

below the rank of Deputy Superintendent of Police under judgment

dated 24th July, 2015 which came to be challenged before the High

Court of Madhya Pradesh and dismissed by a cryptic order dated 9th

May, 2019.

7. Learned counsel for the appellant submits that the

respondents were charged for offences punishable under Section

302/34, 404/34 of the IPC and Section 3(2)(v) of the Act, 1989 and

in the given circumstances, the High Court has committed an

apparent error in quashing the proceedings in discharging the

respondents on a hyper technical ground that the investigation has

been conducted by an Officer below the rank of Deputy

Superintendent of Police and discharging the respondents in the

given circumstances is not sustainable in law and that too when the

trial is at the advanced stage and all the material prosecution

witnesses have been examined and the judgment of the High Court

needs to be interfered by this Court.

8. Per contra, learned counsel for the respondents, while

supporting the order of the High Court, confirming judgment of the

trial Court dated 24th July, 2015 submits that if the very

investigation was found to be faulty and not in compliance with the

mandate of Section 9 of Act, 1989 read with Rule 7 of the Rules,

1995, the structure built up by the appellant could not sustain on

the weak foundation, and this fact has not been disputed by the

appellant that investigation was conducted by an Officer below the

rank of Deputy Superintendent of Police which is the mandatory

requirement under Rule 7 of the Rules, 1995, and in the given

circumstances, no error has been committed by the learned Special

Judge in discharging the respondents and confirmed by the High

Court vide its order impugned dated 9th May, 2019.

9. For appreciating the rival submissions, we need to refer

Section 9 of the Act, 1989 and Rule 7 of the Rules, 1995 which are

as under:-

“9. 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 of 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 subsection

(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).”

“Rule 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 subrule

(1) shall complete the investigation on top priority

within thirty days and submit the report to the

Superintendent of Police who in turn will immediately

forward the report to the Director General of Police of

the State Government.

(3) The Home Secretary and the Social Welfare

Secretary to the State Government, Director of

Prosecution, the officer in charge of prosecution and

the Director General of Police shall review by the end of

every quarter the position of all investigations done by

the investigating officer.”

10. By virtue of its enabling power, it is the duty and

responsibility of the State Government to issue notification

conferring power of investigation of cases by notified police officer

not below the rank of Deputy Superintendent of Police. Rule 7 of

the Rules 1995 provides rank of investigation officer to be not below

the rank of Deputy Superintendent of Police. An officer below that

rank cannot act as investigating officer in holding investigation in

reference to the offences committed under any provisions of the Act,

1989 but the question arose for consideration is that apart from the

offences committed under the Act 1989, if the offence complained

are both under the IPC and the offence enumerated in Section 3 of

the Act, 1989 and the investigation being made by a competent

police officer in accordance with the provisions of the Code of

Criminal Procedure(hereinafter being referred to as the “Code”), the

offences under IPC can be quashed and set aside for noninvestigation

of the offence under Section 3 of the Act, 1989 by a

competent police officer. This question has been examined by a

two-Judge Bench of this Court in State of M.P. Vs. Chunnilal @

Chunni Singh 2009(12) SCC 649. Relevant para is as under:-

“ By virtue of its enabling power it is the duty and

responsibility of the State Government to issue a

notification conferring power of investigation of cases

by notified police officer not below the rank of Deputy

Superintendent of Police for different areas in the

police districts. Rule 7 of the Rules provided rank of

investigating officer to be not below the rank of Deputy

Superintendent of Police. An officer below that rank

cannot act as investigating officer.

The provisions in Section 9 of the Act, Rule 7 of the

Rules and Section 4 of the Code when jointly read lead

to an irresistible conclusion that the investigation of an

offence under Section 3 of the Act by an officer not

appointed in terms of Rule 7 is illegal and invalid. But

when the offence complained are both under IPC and

any of the offence enumerated in Section 3 of the Act

the investigation which is being made by a competent

police officer in accordance with the provisions of the

Code cannot be quashed for non-investigation of the

offence under Section 3 of the Act by a competent

police officer. In such a situation the proceedings shall

proceed in an appropriate court for the offences

punishable under IPC notwithstanding investigation

and the charge-sheet being not liable to be accepted

only in respect of offence under Section 3 of the Act for

taking cognizance of that offence.”

(emphasis supplied)

11. Undisputedly, in the instant case, the respondents were

charged under Sections 302/34, 404/34 IPC apart from Section

3(2)(v) of the Act, 1989 and the charges under IPC have been

framed after investigation by a competent police officer under the

Code, in such a situation, in our view, the High Court has

committed an apparent error in quashing the proceedings and

discharging the respondents from the offences committed under the

provisions of IPC where the investigation has been made by a

competent police officer under the provisions of the Code. In such a

situation, the charge-sheet deserves to proceed in an appropriate

competent Court of jurisdiction for the offence punishable under

the IPC, notwithstanding the fact that the charge-sheet could not

have proceeded confined to the offence under Section 3 of the Act,

1989.

12. The order impugned is accordingly restricted to the offence

under Section 3 of the Act, 1989 and not in respect of offences

punishable under the IPC. The Special Case No. 37/11 is restored

on the file of the Special Court, District Anuppur(MP) and the trial

Court may proceed further and conclude the trial expeditiously in

respect of offences punishable under the IPC in accordance with

law.

13. The appeal is partly allowed in terms as indicated above.

14. Pending application(s), if any, stand disposed of.

…………………………….J.

(INDU MALHOTRA)

……………………………J.

(AJAY RASTOGI)

NEW DELHI

January 17, 2020

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