IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(Cr.) No. 116 of 2015 1. Md. Sarfaraz @ Bablu, son of Md. Imtiyaz Ahmad 2. Md. Mannan, son of Md. Imtiyaz Ahmad 3. Md. Imtiyaz Ahmad @ Imtiyaz Ahmad, son of Md. Wasir Mirza 4. Md. Akhlakh @ Akhlaq Ahmad, son of Md. Wasir Mirza 5. Md. Nasir Ahmad @ Nasir Ahmad, son of Md. Wasir Mirza 6. Md. Osed @ Osed, son of Md. Akhlakh 7. Md. Honed @ Homed, son of Md. Akhlakh 8. Md. Mohsin, son of Md. Nazir Ahmad …. … Petitioner(s) -V e r s u s- 1. State of Jharkhand through the Secretary, Department of Home, Government of Jharkhand, having its office at Project Building, PO & PS Dhurwa, District- Ranchi 2. Director General of Police, Jharkhand, having its office at Project Building, PO & PS Dhurwa, District- Ranchi 3. Superintendent of Police, Giridih, PO & PS Giridih, District- Giridih …. ... Respondents CORAM: - HON’BLE MR. JUSTICE RAVI NATH VERMA For the Petitioner(s) : - Mr. Indrajit Sinha, Advocate For the State : - Mr. Abhay Kumar Mishra, S.C.III For the Informant :- Mr. Arwind Kumar, Advocate 07/30.06.2015 This application under Article 226 of the Constitution of India has been filed by the petitioners for issuance of an appropriate writ commanding upon the respondent no.3, Superintendent of Police, Giridih to investigate the Giridih(T) P.S. Case no. 359 of 2014 instituted under different provisions of the Indian Penal Code and also under Section 3 (x)(xi) of Schedule Castes and Schedule Tribes Prevention of Atrocities Act, 1995 (hereinafter referred to as “the Act”) in terms of Rule 7 of the Schedule Castes and Schedule Tribes Prevention of Atrocities Rules, 1995 ( in short “ the Rules”) as the investigation in this case is being carried out by an officer below the rank of Deputy Superintendent of Police.
2. The petitioners have been made accused in the aforesaid case at the instance of the informant Sunita Kumari on the allegation that on 12.10.2014 at about 10.00 a.m. while she alongwith her neighbouring people visited her land at village Bishunpur upon which construction work was going on, the accused- petitioners variously armed came there and abused the informant with filthy language and also called her by her Caste “ Harijan Pasi Tari Bechne Wale” and threatened the informant with dire consequence. In order to outrage her modesty, the petitioners caught hold her hands and pushed her resulting in she fell down. The petitioners thereafter snatched her necklace and threatened that if they want to make any construction on the land, they would have to pay 2 Rangdari of Rupees five lacs otherwise they will not be allowed to enter into the land.
3. It appears from the record that initially a complaint case was lodged by the present informant, which was subsequently referred to the concerned police station under Section 156(3) Cr.P.C. whereafter the aforesaid case was lodged and the charge of investigation was given to Sub-Inspector Sonu Kumar Choudhary. When the petitioners came to know that charge of investigation has been given to an officer of the rank of Sub-Inspector and not to an officer of the rank of Deputy Superintendent of Police, preferred this writ. During pendency of this writ application on 23.04.2015, the learned counsel representing the State filed a notification issued under Section 9 (i) of the Act with a prayer to this Court to keep it on the record. Whereafter on 07.05.2015, the petitioners filed an interlocutory application bearing no. 2550 of 2015. A copy of which was given to the learned counsel for the State. On 14.05.2015, the counsel representing the State filed a counter affidavit. Today, the learned counsel for the petitioners submitted that the interlocutory application bearing no. 2550 of 2015 has been filed with a prayer to allow the petitioners to make amendment in the writ petition to the extent as prayed for in paragraph 5 of the interlocutory application on the ground that after filing of the notification by the State counsel, it had become necessary for the petitioners to seek amendment in the writ petition. It was also submitted that the State Government by exercising power conferred under Section 9(1) of the Act has authorised the Sub-Inspector and Assistant Sub-Inspector of Police to investigate the case lodged under the said Act. Learned counsel Mr. Sinha relying upon a case State of Madhya Pradesh Vs. Chunnilal @ Chunni Singh; (2209) 12 SCC649submitted that the Hon’ble Supreme Court in paragraph 8 of the judgment has held 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. In the said case, the Hon’ble Supreme Court has clearly depicted that in terms of Rule 7 of the Rules, an Officer below the rank of Deputy Superintendent of Police cannot act as an Investigating Officer.
4. Learned counsel representing the State has though filed a counter affidavit but fairly submitted that he has no objection if the amendment as prayed for in paragraph 5 of the said application is allowed as the same does not change the nature of the case.
5. On perusal of the interlocutory application and especially paragraph 5, it appears that the petitioners want to incorporate in the prayer portion of the writ petition and also after paragraph no. 16 and before paragraph no. 17 by incorporating paragraphs 16(A) to 16(G), mainly 3 challenging the vires of the said notification dated 24th November, 2012 issued by the State Government under Section 9(1) of the Act. It further appears that the amendment sought for are formal in nature and does not change either the subject matter or nature of writ petition in any manner.
6. In the facts and circumstances stated above, the amendment as prayed for in paragraph 5 of the interlocutory application is, hereby, allowed. The counsel for the petitioners Mr. Sinha is directed to incorporate the contents of paragraph 5 at proper places in the writ petition. The interlocutory application is, thus, disposed of.
7. By allowing the amendment, there is no change either in the nature of case or the subject matter but as the “vires of the notification dated 24th November, 2012 issued by the State Government” has been challenged, in view of Rule 34 of the High Court of Jharkhand Rules, 2001, the writ petition is now required to be heard by a Division Bench of this Court.
8. Hence, put up this case before an appropriate Bench after approval of Hon’ble the Chief Justice. In the meantime, interim relief granted vide order dated 14.05.2015 shall continue. (R. N. Verma, J.) Ritesh