Ranjit Alias Rajat Kumar Das and ors. Vs. State of Orissa - Court Judgment

B.P. Das, J.

1. This application Under Section 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 Sections 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 Section 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 investigation, 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, Bhadrak 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 Section 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 investigation 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 the diary for the day pending further investigation of the case.'

6.6.2001 'xxx xxx xxx

Perused the CDs. of the previous I.O. and S. Note of S.P., Bhadrak. The I.O. has complied all the instructions imparted in the S. Note of S.P., Bhadrak. All the four FIR named accused persons have been arrested by the I.O. and , forwarded to Court in custody.

I tested some of the witnesses who stated the same thing as stated earlier before the previous I.O.

The investigation is complete. There is ample evidence Under Sections 341/323/294/506/34, IPC against accused 1. Basanta Das 2. Buru Das, 3. Suryamani Sahoo and Bhagirathi Mahallik.

Submitted full compliance to the instructions imparted in the S. Note with prayer for orders to submit C.S. against the above named accused persons under the above sections of law.

Closed the diary for the day awaiting orders.'

The case diary further discloses that on 14.6.2001 the investigation of the case was closed and charge-sheet against the accused-petitioners was filed for the offences stated earlier.

4. Learned counsel for the State contends that though statements of the witnesses were collected by an S.I. of Police, the Dy. Superintendent of Police after taking over the charge of the case from the said S.I. of Police applied his mind and submitted the charge-sheet, which is due compliance with Rule 7 of the Rules. Now, the question for consideration is whether submission of the charge-sheet by the Dy. Superintendent of Police only by perusing the case diary of the previous I.O. and testing some of the witnesses whose statements were collected by the said I.O. can be said to have been made on the basis of his own investigation in terms of the statutory provisions.

5. In re : Sessions Judge-cum-Special Judge, Cuttack, 2002 (I) OLR 252, analysing the provisions in Section 9 of the Act and Rule 7 of the Rules, this Court while dealing with the question whether investigation into an offence committed under the Act done by a police officer below the rank of the officer so provided in the statute would be fatal to the proceeding, observed as follows :

'........ The punishments for the offences under the Act were enhanced and minimum sentences were also prescribed. Hence, simultaneous safeguard has also been created. The reason to provide safeguard or safety-valve is to see that the stringent provisions of the Act are not misutilised or utilised to harass the innocent citizens. For that reason, special provisions have been made in Rule 7 of the Rules wherein not only a police officer not below the rank of a Deputy Superintendent of Police is to investigate into the case, but the investigating officer shall be appointed taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it alongwith right lines, etc.......'

In the aforesaid case this Court held that any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated and consequently the criminal proceeding initiated on the basis of such investigation was also vitiated because of non-compliance with the statutory provisions.

6. Here is a case where, according to the learned counsel for the petitioners, a seal of approval has been put by the Dy. Superintendent of Police on the investigation done by the S.I. and the charge-sheet has been filed by the Dy. Superintendent of Police. The question that arises is whether mere filing of chargesheet by the Dy. Superintendent of Police in the circumstances as indicated above can be said to have been done on the basis of the investigation done by the said Dy. Superintendent of Police himself.

7. The word 'investigation' has not been defined in the Act. But the Code of Criminal Procedure defines 'investigation' in Sub-section (h) of Section 2 as follows :

''investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf'

Broadly speaking, investigation includes collection of evidence conducted by a police officer. So, an investigating officer shall collect the evidence which may ultimately culminate in, filing of final form Under Section 173 of the Cr.P.C.

In this regard I may refer to a decision of the Apex Court in H. N. Rishibud v. State of Delhi. AIR 1955 SC 196. wherein dealing with the meaning of 'investigation' in the Cr.P.C it was observed thus :

'Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.

Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes 'all the proceedings under the Code for the collection of evidence conducted by a police officer'. For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such person orally either by himself or by a duly authorised deputy. The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in Section 162.

xxx xxx xxxxxx xxx xxx

Thus, under the Code investigation consists generally of the following steps : (1) Proceedings to spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet Under Section 173.'

The aforesaid view of the Apex Court was reiterated in the later decision of the said Court in the State of Madhya Pradesh v. Mubarak Ali, AIR 1959 SC 707.

8. So, the I.O. has to follow the aforesaid tests, relating to investigation before filing a charge-sheet in the Court. Here is a case where the Deputy Superintendent of Police, who is empowered to investigate into the offence committed under Act, has only looked into the statements collected by the S.I. of Police, who had initially conducted the investigation into the offence, and the Dy. Superintendent of Police filed the charge-sheet saying that there was ample evidence to proceed against the accused persons. The Dy. Superintendent of Police neither examined any witness nor did he himself collect the statement of any witness in the case. He only relied upon the evidence so collected by the S.I. of Police. In view of the decision in re : Sessions Judge (supra) as well as the statutory provisions, the offence committed under the Act was to be investigated by a Police officer not below the rank of a Deputy Superintendent of Police. Special provisions have been made for the purpose of investigation into an offence committed under the Act. for which Rule 7 of the Rules has been framed by the Central Govt. making a provision that the offences under the Act shall be investigated.by a police officer not below the rank of a Deputy Superintendent of Police. On a reading of the Act as well as the Rules made thereunder, it is apparent that the Legislature intended framing of Rules as above for proper execution of the provisions of the Act in order to curb the increasing number of cases of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes. Over and above, it is not only that a police officer not below the rank of a Dy. Superintendent of Police is to investigate into the offence, but the investigating officer has to be appointed 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 etc. Sub-rule (2) of Rule 7 authorises the investigating officer so appointed under Sub-rule (1) to complete the investigation on top priority within thirty days and to submit the report to the Superintendent of Police, who in turn is to forward the report immediately to the Director-General of Police of the State. Thus, the Rules provide certain steps to be taken by the Dy. Superintendent of Police after being entrusted with the investigation of a case.

9. On the face of the above statutory provisions, if a Sub-Inspector of Police is allowed to investigate into a case of the present nature and a seal of approval is given by the Dy. Superintendent of Police on such investigation without the investigation being done by the Dy. Superintendent of Police himself and charge-sheet is filed by the Dy. Superintendent of Police on such investigation, then the intention of the Legislature drafting the Rules, and the statutory provisions made to curb the increasing number of oppression on the people belonging to the Scheduled Castes and Scheduled Tribes, would be frustrated.

10. It is well settled that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. Relying upon the decision in Nazir Ahmed v. King Emperor, AIR 1936 P.C. 253 (2), and applying the principle laid down in Taylor v. Taylor, (1876) 1 Ch. D 426, the Apex Court in State of U.P. v. Singhara Singh, AIR 1964 SC 358, held thus:

'The rule adopted in Taylor v. Taylor, (1876) 1 Ch. D 426, is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed..,......'

11. In this case an affidavit has been filed by the Dy. Superintendent of Police indicating therein that after perusing the case diary, he found that the investigating officer had taken all the required steps and nothing was left to be done by him in the matter of investigation of the case. The Dy. Superintendent of Police tested some of the witnesses, who stated the same thing as stated before the earlier I.O.

It is not the question of propriety of the I.O. The question involved is whether the I.O., i.e. the S.I. of Police, was empowered to conduct the investigation as per the statute. If it was the Dy. Superintendent of Police, who was to conduct the investigation of the case as required by the statute, then the question is whether he could file the charge-sheet saying that the previous I.O. had taken all the required steps and nothing was left to be done by him. The spirit of the statute is clear that the offences under the Act shall be investigated by a police officer not below the rank of a Dy. Superintendent of Police having certain other added qualifications.

12. In the facts and circumstances of the case and looking into the case diary so produced by the learned State Counsel, I am of the view that the charge-sheet so submitted by the Dy. Superintendent of Police, Bhadrak, can never be said to have been filed on the basis of the investigation made by himself in terms of the statutory provisions, I therefore, set aside the order passed by the learned S.D.J.M., Bhadrak, in G.R. Case No. 154 of 2001 taking cognizance of the offence Under Section 3 of the S.C. and S.T. (P.A.) Act against the petitioners. However, the order of the learned S.D.J.M. so far as it relates to taking cognizance of the various offences under the Indian Penal Code is maintained and the criminal proceeding in respect of those offences shall proceed. The petitioners are now to face the trial for the said offences.

13. With the aforesaid directions and observations, the criminal misc. case is allowed.

Let a copy of this judgment be communicated to the Secretary to the Govt. of Orissa in Home Department and the Director-General of Police for appropriate action at their end.