2006 ALL MR (Cri) JOURNAL 193
(ANDHRA PRADESH HIGH COURT)(FULL BENCH)

B. PRAKASH RAO, G. YETHIRAJULU AND P. SWAROOP REDDY, JJ.

Yannam Satyanarayan Vs.State Of A.P.

Cri. Petn. No.3692 of 2002

23rd January, 2006

Petitioner Counsel: C. DHANANJAYA

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), S.23 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules (1995), R.7 - Rule providing that investigation be conducted by an officer not below the rank of Dy. Supdt. of Police - Rule is not mandatory but only directory - Investigation by officer below the rank of Dy.Supdt of Police is not totally vitiated. 2002(2) ALD (Cri) 206 Overruled. (Para 12)

Cases Cited:
Viswanadhula Chittibabu Vs. State of A.P., 2002(2) ALD (Cri) 206 (AP) : 2002(4) ALT 456 [Para PARA4,6,8,12]
H. N. Rishbud Vs. State of Delhi, AIR 1955 SC 196 [Para PARA6,8,11]
State of W.B. Vs. Narayan, AIR 2000 SC 1405 [Para PARA6,10,12]
State of M.P. Vs. Ram Singh, (2000)5 SCC 88 [Para PARA6,11,12]
D. Ramalinga Reddy alias D. Babu Vs. State of A.P., 1999(1) ALT (Cri) 287 [Para PARA8]
Pentakota Koteswara Rao Vs. State of A.P., 1999(1) ALT (Cri) 236 [Para PARA8]


JUDGMENT

-B. PRAKASH RAO, J.:- This reference coming before us, at the instance of the learned single Judge Sri. Justice T. Ch. Surya Rao, involves the question as to whether the investigation as contemplated under Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for brevity "the Rules") is mandatory.

2. The few facts, which are necessary for determination of the aforesaid aspect, are that in the present application filed under Section 482 of the Code of Criminal Procedure, the petitioner, who is the accused, seeks to quash the proceedings in S.C. No.21 of 2002 pending on the file of the I Additional Sessions Judge, Rajahmundry, East Godavari. The petitioner is an accused in Crime No.39 of 2001 registered for the offences punishable under Sections 447, 427, 354, 504, IPC and Section 7(i)(d) of the Protection of Civil Rights Act, 1955. On completion of the investigation, the Investing Officer-Sub-Inspector of Police filed charge-sheet for the said offences on the file of the I Addl. Judicial Magistrate of First Class, Special Mobile Court, Kakinada who took cognizance of the same and committed it to the I Additional Sessions Judge, Rajahmundry in PRC No.3 of 2001. Accordingly, the learned Sessions Judge has taken up the case by framing charges under Sections 447, 427, 354 and 506, I.P.C. and 3(1)(x) and Section 3(1)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3. The case of the prosecution is that the petitioner is an immediate neighbour to the de facto complainant who was cultivating the Government poramboke land admeasuring Ac.0-40 cents by the side of Yeleru canal. On 23-3-2001 morning, the petitioner trespassed into the land of the de facto complainant and caused mischief by cutting four teak plants and thereby caused loss to a tune of Rs.400/-. However, it is alleged that when the de facto complainant and two others were trying to obstruct, the petitioner from doing so, he abused her in filthy language and also pushed her by keeping his hands on her breast and dragged her to a distant field. According to the petitioner, initially a crime was registered under Sections 447, 427, 354 and 506, I.P.C. and Section 7(1)(d) of the Protection of Civil Rights Act. The learned committal Magistrate took the complaint under Section 3(i)(x) and 3(i)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, instead of S.7(1)(d) of the Protection of Civil Rights Act apart from the other offences alleged. Therefore, the committal Magistrate has no jurisdiction to alter the offence in the charge-sheet before committing the case to the Court concerned. However, according to the petitioner, he had no knowledge of alteration of the offence in the charge-sheet by the committal Magistrate before committing the case and it is only after committal, the learned Sessions Judge framed the charges under Sections 3(1)(x) and 3(i)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989. It is stated that the committal Magistrate should have committed the case to the Assistant Sessions Judge, Peddapuram since the charge-sheet was filed for the offences triable by the Assistant Sessions Judge. Further, the main point on which the case of the petitioner rests is that under Rule 7 of the Rules, investigation shall have to be conducted by an Officer not below the rank of Deputy Superintendent of Police and accordingly the charge-sheet should be filed by him but not by the Sub-Inspector of Police. However, in the instant case, the investigation has been conducted by the Sub-Inspector of Police, who has no jurisdiction under the said Rule, and therefore, the charge-sheet filed by him is not in accordance with the provisions of the Act and the same is liable to be quashed.

4. Before the learned single Judge, reliance was placed on behalf of the petitioner on the ratio in the decision of the Division Bench of this Court in Viswanadhula Chittibabu Vs. State of A.P., 2002(2) ALD (Cri) 206 (AP) : 2002(4) ALT 456 wherein it was held that the provisions of Rule 7 of the Rules are mandatory and infraction thereof makes the investigation wholly illegal.

5. Considering the scope and object under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, the learned single Judge proceeded that:

"The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a piece of social legislation made to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. To that end, the Act seeks to provide for constitution of Special Courts for trial of such offences and for the relief and rehabilitation of the victims of such offences. Section 3 thereof is the penal provision which prescribes the punishment for various categories of offences enumerated inter alia therein. Section 6 provides for the application of certain provisions of the IPC enumerated in Chapters III, IV, V, V-A and XXIII. Section 4 prescribes the punishment for the neglect of the duties by the public servant, which are required to be performed under the Act. Under Section 9, the State Government by notification in the official Gazette may confer powers exercisable by a Police Officer under the Code of Criminal Procedure ('the Code' for brevity) on any officer of the State the powers of arrest, investigation and prosecution of persons before the Special Court. Under Sub-section (3) thereof, the provisions of the Code shall, so far as may be, apply to the exercise of the powers by any officer under Sub-section (1). Under section 14, the Act envisages the establishment of a Special Court for each district for speedy trial of the cases. Section 15 envisages the appointment of Special Public Prosecutor. Section 23 enables the Central Government to make the Rules under the Act. In exercise of the powers conferred under Section 23, the Central Government framed the Rules known as "The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995" ('the Rules' for brevity). Rule 7 thereof is the provision germane for consideration in the context. It reads as under :

"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 Sub-rule (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."

It is obvious from a perusal of the provisions referred to hereinabove that the State Government is competent to confer upon any of its officers the powers of a regular Police Officer under the Code like the power to arrest, investigate and prosecute before a Special Court the offences who committed the atrocities on the members of the Scheduled Castes and Scheduled Tribes, as the case may be. The Act contemplates the establishment of Special Courts and appointment of Special Public Prosecutors, all with the avowed object of preventing the commission of offences and for the speedy trial of such offences perpetrated against the members of the Scheduled Castes and the Scheduled Tribes. Rule 7 is meant to appoint an efficient and high cadre Investigating Officer for an effective implementation of the provisions of the Act. Ultimately, the Special Court has to take cognizance of the same. Although the Act is silent about the committal proceedings, in view of the judgment of Apex Court in Gangula Ashok Vs. State of Andhra Pradesh, AIR 2000 SC 740 the committal of the case is a sine qua non for the Special Court to take cognizance inasmuch as the Presiding Officer of the Special Court is an Officer of the cadre of Sessions Judge and the provisions of the Act have not specifically barred the applicability of the provisions of the Code, particularly Section 193 thereof."

6. Later, by referring to the principles laid down in H. N. Rishbud Vs. State of Delhi's case, AIR 1955 SC 196 vis-a-vis holding that the chapter pertaining to investigation continues to apply even in respect of the offences punishable under the special Act and especially referring to Sections 190 and 193, Cr.P.C. and also in the decisions reported in State of West Bengal Vs. Narayan, AIR 2000 SC 1405 and State of Madhya Pradesh Vs. Ram Singh, (2000)5 SCC 88 it was observed that the observations of the Apex Court in H. N. Rishbud Vs. State of Delhi's case (supra) in para 9 had not been considered by the Division Bench of this Court in the judgment referred to earlier in Viswanadhula Chittibabu Vs. State of A.P. (2002(2) Andh LD (Cri) 206) (supra). Further, such situation was not envisaged under any substantive provision under the Act and it cannot be held that there is any infraction of the provisions of the Act. Therefore, the learned single Judge did not concur with the views expressed by the Division Bench in Viswanadhula Chittibabu Vs. State of A.P.'s case (supra) and referred the matter for an authoritative pronouncement.

7. Heard Sri Challa Dhananjaya, the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the State. This Court sought assistance of the learned senior counsel Sri C. Padmanabha Reddy who gave valuable assistance.

8. As already observed above and noted by the learned single Judge in the reference order in regard to the scope and object of the Act, it is a special enactment, which was ushered in to prevent the social evil and menace. As rightly observed by the learned single Judge in regard to the investigation, the Act is very silent and Rule 7 of the Rules is only a subordinate legislation made under the rule making power. Further, there is no specific provision contemplated in the Act in regard to the power of investigation independently or any specific officer is conferred upon, in contrast to normal procedure in the chapter containing in the Code of Criminal Procedure. Therefore, from the aforesaid background, the power to investigate has been specifically sought to be placed with a specific constituted Officer, who has to be appointed by the State Government and the authorities concerned in the manner provided under the said Rule 7. No doubt, this is a departure from a normal investigation process being made under the Rule. Further, the fact remains that in view of the serious social menace and to make a safer investigation, an Officer not below the rank of Deputy Superintendent of Police with such power of investigation shall be appointed. In Viswanadhula Chittibabu Vs. State of A.P. (supra), while considering the very same question as to whether Rule 7 framed under the said Rules is mandatory or directory, the Division Bench of his Court took note of the two decisions in contrast reported in D. Ramalinga Reddy alias D. Babu Vs. State of Andhra Pradesh, 1999(1) ALT (Cri) 287 and also Pentakota Koteswara Rao Vs. State of Andhra Pradesh, 1999(1) ALT (Cri) 236. In fact, the reference to the said Division Bench was made only to resolve the said two conflicting decisions. While considering the said question, the Division Bench in the aforesaid decision sought to proceed that :

"A defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report, which results from an investigation, is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of S. Under the heading conditions requisite for initiation of proceedings. The language of this section is in marked contrast with that of the other S. of the group under the same heading, i.e., Sections 193 and 195 to 199.

These latter S. regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense. Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance. It is not possible to say that cognizance of an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceedings antecedent to the trial. To such a situation Section 537 of the Code of Criminal Procedure, which is in the following terms, is extracted:

"Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned in failure of justice."

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu Vs. Emperor (1) and Lumbhardar Zutshi Vs. The King (2). These, no doubt, relate to the legality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriages of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby."

Apparently, the Division Bench sought to draw a distinction in regard to the procedure before the Court and the investigation. Therefore, the procedural defect as contemplated under Section 537 of the Code of Criminal Procedure would only mean and applicable to the procedure in the Court and not before and thus the investigation procedure which has to be done by a Police Officer and below the rank of Deputy Superintendent of Police under Rule 7 of the said Rules framed under Section 23 of the said Act is not the procedural defect and it is inherent defect in making the investigation and that would vitiate the entire trial. No doubt, as rightly observed by the learned single Judge the observations of the Apex Court in H. N. Rishbud Vs. State of Delhi (supra) which are extracted below did not find any reference:

"A defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation, is provided in S.190. Cr.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. S.190, Cr.P.C. is one out of a group of sections under the heading "conditions requisite for initiation of proceedings." The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense. Clauses (a),(b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceedings antecedent to the trial. To such a situation Section 537, Cr.P.C.--

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled."

9. The provisions of Sections 190 and 193, Cr.P.C. came up for consideration in a different contextual note rather than in which it has been placed by the Apex Court in the aforesaid decision.

10. In State of West Bengal Vs. Narayan (supra) which has been referred to by the learned single Judge is a case where a special investigating agency as constituted under the West Bengal Sales Tax Act under the name and style of "Bureau of Investigation" is the only competent authority under Section 7 thereof to investigate in respect of any offence under the Act. The said Bureau of Investigation conducted some discreet investigation against the respondent in that case, which revealed commission of forgery and impersonation to defraud the Government to a huge sales tax amount. On a complaint presented by the Assistant Commissioner of Commercial Taxes to the Deputy Superintendent of Police attached to Bureau of Investigation, he in turn forwarded the complaint to the Station House Officer, Hari Narainpur Police Station, Calcutta, a crime was registered by the regular police. Thereupon, the respondent sought to quash the very F.I.R. itself in the High Court on the ground that the Bureau of Investigation is the only authority to conduct investigation and not by any other Police Officer. Considering the said aspect, on appeal, the Supreme Court held that :

"A reading of Section 7 makes it clear that creation of a Bureau of Investigation is for the purpose of discharging the function envisaged in Sub-section (3) which of course includes the investigation also. But there is nothing in Section 7 that such investigation can be carried on only by the Bureau and not any other investigation agency. It is open to the Bureau to get the assistance of any other legally constituted investigating agency for effectively inquiring into all the ramifications of the offence. As in this case if offences falling under the Indian Penal Code or any other enactment are also detected during the course of Investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police".

In para 17, the Apex Court further held thus :

"The consequences of such an interpretation would be that if the person who commits the offence under Section 88 of the Act also commits other serious offences falling under the Indian Penal Code as part of the same transaction neither the regular police nor any special police force nor even the Central Bureau of Investigation can be authorized to conduct investigation. The accused in such cases would then be well ensconced insulated from the legal consequences of a proper and effective investigation. Criminal Justice would be the serious casualty then".

11. Similarly in State of Madhya Pradesh Vs. Ram Singh (supra) which has been referred to by the learned single Judge, the Apex Court relying upon its earlier judgment in H. N. Rishbud's case (supra) in para 14, held that :

"It may be noticed at this stage that a three Judge Bench of this Court in H. N. Rishbud Vs. State of Delhi had held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial".

Thereupon the Apex Court went on quoting the relevant observations made in H. N. Rishbud's case and two judgments of Privy Council. That was a case where the initial investigation was conducted by a Deputy Superintendent of Police, Special Police Establishment, Gwalior, and thereafter by an Inspector, SPE, who was stated to have been duly authorized by the Superintendent of Police, SPE, under his orders issued under Section 17 of the Prevention of Corruption Act, 1988. After the investigation, sanction was obtained and the charge-sheet was filed. Exercising its power under Section 482 of the Code, the Madhya Pradesh High Court quashed the investigation and the consequent proceedings on the ground that for the offence punishable under Section 13(1)(e) of the said Act, the investigation had not been conducted by an authorized officer in terms of Section 17 of the said Act. However, the Supreme Court ultimately set aside that order".

12. Having regard to the aforesaid principles as enunciated by the Apex Court, more so, with the statutory background in the present case in the absence of any specific provision to that effect and the competency to conduct the investigation sought to be conferred only through the subordinate legislation where there is no challenge to the validity of the said Rule 7 of the Rules, it has to be necessarily seen that the investigation is a process which will have no bearing as such on the case unless and until the accused or the party aggrieved comes out with any serious prejudice to him or any rights conferred under the law, the trial would not go derailed in any manner. Further, though there is no explanation forthcoming on behalf of the State as to why and how the investigation as contemplated by an Officer as per the said Rule has not been taken recourse to, yet it cannot be a sole ground as such to give any advantage to the accused or aggrieved party to take any shelter thereunder and go scot free. Therefore, it necessarily follows that it is open to the accused or the party aggrieved to show substantial prejudice which has an indelible mark on the very case or the merits itself as sought to be made against him. The mere investigation conducted by an Officer other than the one who is contemplated under the said Rule, cannot be said to be totally vitiated. Even on a reading of the decision of the Division Bench of this Court in Viswanadhula Chittibabu Vs. State of A.P. (supra), the Division Bench of this Court has no opportunity of referring to the decisions which have been referred to above in State of West Bengal Vs. Narayan (supra) and State of Madhya Pradesh Vs. Ram Singh (supra) and consequent effect of such departure in the investigation process on the rights of the accused or the party aggrieved. The prejudicial aspect has not come up for consideration. It is now well settled that even in regard to a procedure preceding the Court trial would not have any effect on the case unless and until the prejudice is shown by the accused or the party aggrieved. In view of the above, we are not in entire agreement with the principles laid down by the aforesaid Division Bench to hold that Rule 7 of the Rules is a mandatory and the same is not a procedural defect but it is only inherent defect in making the investigation vitiating the entire trial. Though, we share the view of the Division Bench only to the extent that the investigation procedure has to be necessarily followed up in the manner so prescribed under the Statute or the Rules made thereunder, any defect therein would not in any way make any inroads into the trial in its entirety. However, it is open to the accused or the party aggrieved at the initial stages to raise such objection on the investigation conducted by any Officer other than the one contemplated under Rule 7 of the Rules and invite a decision before the commencement of the trial itself. However, the same cannot be taken advantage after completion of the entire trial, more so, in the absence of showing any substantial prejudice. It is only where the Court on either stage comes to conclusion that the rights and interests of the accused or the party aggrieved have been substantially affected or prejudiced, necessary benefit has to be extended. We accordingly hold that the said Rule is not mandatory but only a directory one. Consequently we overrule the decision in Viswanadhula Chittibabu Vs. State of A.P. (supra).

13. The Reference is answered accordingly. The Registrar (Judicial) shall post the main case before the learned single Judge for hearing.

Order accordingly.