S.S. Parkar, J.
1. 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 reported in : 1999(5)BomCR255 and the other in the case of Yunus Daud Bhura v. State of Maharashtra reported in : (2001)4BOMLR181 . 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 FIR 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 Addl. 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 Ramanath Koltharkar's 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 PSI. 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 Koltharkar's case (supra). The Addl. 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 Koltharkar's case and quashed the proceedings. A copy of the said order is annexed as Exhibit 'D' to this petition which is under challenge in this petition.
7. We heard both the sides at length. Mr. Rupwate appearing for the petitioner placed reliance on the judgment of Batta, J. delivered in the case of Yunus Daud Bhura v. State of Maharashtra reported in : (2001)4BOMLR181 in which similar point arose and the learned Judge, by following the judgments of the Apex Court in the case of. N. Rishbud and Anr. v. State of Delhi reported in : 1955CriLJ526 and in the case of Munnalal v. State of U.P. reported in : 1964CriLJ11 so also in the case of State of U.P. v. Bhagwant Kishore Joshi reported in : 1964CriLJ140 , held that the prosecution is not liable to be set aside unless prejudice had resulted to the accused.
8. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a special Act enacted with an object to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. A perusal of the provisions of the Act would show that the object of the Act is to uphold the dignity and respect of the members belonging to the Scheduled Castes and the Scheduled Tribes so that they need not suffer any ignominy or harassment or insults by virtue of belonging to the said Castes or Tribes. In order to ensure that in the course of investigation the members belonging to the said Scheduled Castes or Scheduled Tribes do not suffer any prejudice on account of their castes and tribes, there is bar for the applicability of the provisions of Section 438 of the Code of Criminal Procedure under which the High Courts and the Sessions Courts are empowered to grant what is commonly known as anticipatory bail to the accused. The said rights are further sought to be protected, inter alia, by Rule 7 of the rule which were made by the Central Government in the year 1995 whereby the offence committed under the provisions of the Act has to be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The wording of the said rule considered in the context or juxtaposition of the object of the Act Would leave no doubt that the said provision was intended to be mandatory so that the investigation in the offences committed under the provisions of this Act cannot be made by a police officer below the rank of a Dy. S. P. or equivalent thereto.
9. The question, therefore, is whether non-compliance with such mandatory rule would result in an illegality which would render the prosecution itself invalid and, therefore, liable to be quashed. In this respect reference may be made to the judgments of the Apex Court which were rendered while interpreting more or less similar provision under the Prevention of Corruption Act. Under Section 17 of the Prevention of Corruption Act, 1988 it is provided that the investigation in the offences under the said Act has to be made in the metropolitan areas by an Asst. Commissioner of Police and elsewhere by a Deputy Superintendent of Police or Police Officer of equivalent rank. Under the proviso the police officer not below the rank of an Inspector of Police authorised by the State Government by general or special order is also empowered to investigate such offence. Any officer below the rank of Inspector of Police can investigate the offences under the said Act only under the orders of a Metropolitan Magistrate or a magistrate of the First Class. More or less similar provision was there under the Prevention of Corruption Act, 1947 with which the Supreme Court was concerned in the judgments which shall be presently discussed.
10. In the case of H. N. Rishbud v. State of Delhi reported in : 1955CriLJ526 the Supreme Court had to consider whether the trial which took place under the provisions of the Prevention of Corruption Act, 1947, where the offence was investigated by the Police Officer below the rank of Dy. S. P., could be quashed. Under the relevant provisions, the offences under the Prevention of Corruption Act could not be investigated by an officer below the rank of Dy. S. P. except, under the orders of a Magistrate. The Supreme Court in that case was considering following two questions as mentioned in para 4 of the judgment. Firstly, whether the provision of the Prevention of Corruption Act, 1947, enacting that the investigation into the offences specified therein shall not be conducted by any police officer of a rank lower than a Deputy Superintendent of Police without the specific order of a Magistrate, is directory or mandatory. Secondly whether the trial following upon an investigation in contravention of the said provision was illegal. At the end of para 8 of the judgment the first question was answered by the Supreme Court by observing as follows:
'.....We are, therefore, clear in our opinion that Section 5(4) and proviso to Section 3 of the Act and the corresponding Section 5-A of Act 59 of 1952 are mandatory and not directory and that the investigation conducted in violation thereof bears the stamp of illegality. The second question was answered at the end of para 9 of the judgment by observing as follows: '.....We are, therefore, clearly, also, of the opinion that where thecognizance 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.'
11. In para 10 of the judgment the Supreme Court has considered the situation, which obtains in the instant case, when the breach of mandatory provision is brought to the knowledge of the Court at a sufficiently early stage i.e. before the trial begins. It is answered as follows :--
'(10) It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.'
It was further observed at the end of para 10 of the said judgment as follows:
'In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the act has to be decided and the course to be adopted in these proceedings, determined.'
That was a case where the objection was raised at the appellate stage and the Supreme Court directed the Special Judge to take back the two cases on his file and pass appropriate orders after reconsideration in the light of the judgment of the Apex Court.
12. This view of the Apex Court has been followed by it in number of decisions subsequently. Reference may be made to the judgment of the Supreme Court in the case of State of M.P. v. Mubarak Ali reported in : 1959CriLJ920 . That case also pertained to the provisions of the Prevention of Corruption Act. In that case objection was taken before the trial began before the Special Judge that the investigation had been conducted by Police Officer lower in rank in breach of Section 5A of the Act. The matter went before the High Court which directed that in order to rectify the defect and cure the illegality in the investigation, the Special Judge should order the Deputy Superintendent of Police to conduct the investigation himself while the case remained pending in the Court of the Special Judge. The order of the High Court was challenged in appeal before the Apex Court which came to be dismissed affirming the view taken earlier by the Supreme Court in the aforesaid Rishbud's case,
13. Both the aforesaid cases were discussed by the Supreme Court subsequently in the case of Munnalal v. State of U.P. reported in : 1964CriLJ11 . In that case it was urged before the Supreme Court that the investigation was irregular not being in accordance with Section 5A of the Act as the entire investigation was done by Sub Inspector of Police. Referring to the judgment of the Supreme Court in Rishbud's case the Supreme Court observed in para 7 of the judgment as follows :
'.....In view of this decision, even if there was irregularity in theinvestigation and Section 5A was not complied with in substance, the trials cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of the illegal investigation. Learned counsel for the appellant has been unable to show us how there was any miscarriage of justice in these cases at all due to the irregular investigation.'
Reference was also made to the decision of the Apex Court in the case of State of M.P. v. Mubarak Alt referred to above.
14. This view has been again reiterated by the Supreme Court in the case of State of Uttar Pradesh v. Bhagwant Kishore reported in : 1964CriLJ140 , and in the case of Sailendranath Bose v. State of Bihar reported in AIR 1968 SC 1292 then in the case of Khandu Sonu Dhobi v. State of Maharashtra reported in : 1972CriLJ593 and in the case of A. C. Sharma v. Delhi Administration reported in : 1973CriLJ902 .
15. In our view, though the provisions under the Prevention of Corruption Act and the Scheduled Castes and Scheduled Tribes Act are not identical with regard to the power of investigation, it cannot be disputed that under both the enactments the law makers have mandated that the offence shall be investigated by an officer not below the rank of Dy. S. P. unless authorised by the Magistrate or the State Government under the former Act and, therefore, the dicta of the Supreme Court in the aforesaid judgments will be squarely applicable to the mandatory provision under rule 7 of the Rules of 1995 which were framed under the Prevention of Atrocities Act. The object of such mandatory rule is not difficult to unravel. A higher officer of the rank of Dy. S. P. is mandated to investigate the matter under this Act not only with a view to protect the accused from being prosecuted falsely or wrongly, as may be argued, but the main object seems to be to protect and advance the rights given to the members of the Scheduled Castes and the Scheduled Tribes under the provisions of the Act and the prosecution does not suffer for improper or faulty investigation likely to be made by the officers of lower rank which would defeat the protection afforded to the members of the Scheduled Castes and the Scheduled Tribes under the Act. If the prosecution is allowed to be quashed simply on the ground of the investigation being made by an officer of lower rank than prescribed under the rules even in the absence of any prejudice caused to the accused, it would be easier to defeat the object or provisions of the Act whenever inadvertently or otherwise the investigation is entrusted to or conducted by an officer lower in rank than the Deputy Superintendent of Police.
16. Mr. Gupte appearing for the Respondent No. 4 - accused contended that the petitioner complainant kept quiet after he received reply from the Dy. S. P. on 7th March 2000, though nothing prevented him from applying to the trial Court for getting the offence investigated by Dy. S, P. instead of waiting till the prosecution was quashed and the accused discharged and, therefore, the impugned order of discharge should not be set aside by this Court. He submitted that if the petitioner wants, he can file a private complaint in the trial Court. We find no substance in the said argument nor any logic. The complainant, after learning about the judgment of this Court, addressed a letter to the Dy. S. P. who, instead of taking appropriate steps by applying to the trial Court for curing the defect, raised his hands stating that the charge-sheet having been filed the case is sub judice and he could not do anything in the matter. As observed earlier in Mubarak All's case the Supreme Court had upheld the order of the High Court directing reinvestigation of the case by the competent officer when the Court was moved before the charge was framed or cognizance was taken by the trial Court. As per the above dicta of the Apex Court, since the trial had not commenced nor the charge was framed in the present case, reinvestigation of the complaint filed by the petitioner can be ordered as was done in Mubarak Ali's case which has been referred to hereinabove.
17. We are of the view that the learned Single Judge of this Court who decided Ramnath Koltharkar's case had missed 'the fact that in the case of Munnalal, which was cited before him, the Supreme Court had made elaborate reference to its earlier judgments in Rishbud's case as well as in Mubarak Ali's case. While in Rishbud's case the Supreme Court has observed that in case when the irregularity is pointed out at an early stage, reinvestigation can be ordered, in Mubarak Ali's case the Supreme Court upheld the order of the High Court directing reinvestigation by the competent officer. In view of the aforesaid clear dicta of the Supreme Court, the view taken by Deshpande, J. in Koltharkar's case holding that when the objection is raised about the illegality in the investigation before framing of the charge, the prosecution has to be quashed for non-compliance with the mandatory rule, is not correct.
18. In this case Mr. Gupte has not contended nor has he attempted to show any prejudice having been caused to the accused for investigation having been conducted by Sub Inspector of Police.
19. In the result, we allow this petition and quash and set aside the impugned order of discharge dated 6-8-2001 passed by the Addl. Sessions Judge, Palghar in Sessions Case No. 133 of 2001 and restore the case on his file and direct him to pass appropriate orders to rectify the defect and cure the illegality in the investigation by ordering the Deputy Superintendent of Police to investigate the matter himself while the case remains pending in his Court and thereafter proceed in accordance with law. Rule is made absolute accordingly.