CRIMINAL MISCELLANEOUS No.31887 OF 1999
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In the matter of an application under section 482 of
the Code of Criminal Procedure.
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TARIQUE AHMAD @ TARIQUE ALAM
son of Md.Sadique, resident of village Belua,
P.S.Kishanganj, District Kishanganj
…….. …….Petitioner
Versus
STATE OF BIHAR … …… …….Opp. Party
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For the petitioner : M/s. Najmul Hoda, Firoz Ahamd and
Dr.Alok Kumar Alok
For the State : Mr.Jharkhandi Upadhayay, Addl.P.P.
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PRESENT
THE HON’BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar,J. The sole petitioner, while invoking inherent
jurisdiction of this court under section 482 of the Code of Criminal
Procedure, has prayed for quashing of an order dated 8.9.1999
passed by the Chief Judicial Magistrate, Kishanganj in G.R. Case
No.136 of 1998 arising out of Bahadurganj P.S. Case No.15 of
1998. By the said order learned Magistrate has taken cognizance
of offences under sections 420, 384 and 323 of the Indian Penal
Code and under Section 3/4 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as S.C/S.T. Act).
2. Short fact of the case is that earlier a complaint was
filed by the informant/complainant-Babu Lal Pandiya in the Court
of Chief Judicial Magistrate, Kishanganj vide Complaint Case
No.32 of 1998 which was referred to the police for its registration
and investigation under section 156(3) of the Code of Criminal
Procedure and, thereafter, first information report vide
Bahadurganj P.S. Case No.15 of 1998 was registered. After
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investigating the case, the police submitted charge sheet and,
thereafter, learned Magistrate by order dated 8.9.1999 has passed
order of cognizance and summoned the petitioner to face trial.
Since in the present case main ground has been taken by the
learned counsel for the petitioner that order of cognizance is bad in
law due to the reason that the case was investigated by the Officer
below the rank of Deputy Superintendent of Police which was
contrary to the provisions contained in Rules 7 of S.C./S.T. Rules,
1995 and section 9 of the S.C./S.T. Act.1989, it is not necessary to
give in detail the accusations made against this petitioner.
3. It was submitted by learned counsel for the
petitioner that as per the provisions of S.C./S.T. Act and Rules, no
Officer below the rank of Deputy Superintendent of Police was
authorized either to register a case or investigate a case for the
offence under the S.C./S.T. Act. It was submitted that in the
present case Assistant Sub.Inspector of Police was the
investigating officer and, as such, on the ground of lack of
jurisdiction of investigating officer it has been argued that the
entire proceeding against the petitioner is vitiated and, as such,
order of cognizance is liable to be set aside. Learned counsel for
the petitioner in support of his argument has referred to a
judgment reported in 2002 Cr.L.J.3872 (State of Karnataka Vs.
Smt.D.Jayamma). It was submitted that in the said case
prosecution was set aside on the ground that the case under
S.C./S.T. Act was investigated by an Inspector of Police and not
by the Deputy of Superintendent of Police as prescribed under the
Rules. Similar view was taken in another case reported in 2004
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Cr.L.J. 2626 (Chandrashekhar Pani and others.Vrs.State of
Orrisa). Learned counsel has also relied on a judgment of this
Court reported in 2000(1) PLJR 889 (Mohan Choudhary Vs.
The State of Bihar and others). In all the cases it has been
argued that the prosecution was set aside on the ground that the
case was not investigated by an Officer as required by law i.e.
Officer not below the rank of Deputy Superintendent of Police.
In all such cases Investigating Officer was either Sub-Inspector of
Police or Inspector of Police or even Assistant Sub-Inspector of
Police and as such on the strength of the aforesaid judgments it has
been argued that in the present case also, since investigation was
conducted by an Assistant Sub-Inspector of Police, order of
cognizance as well as the entire criminal proceeding is liable to be
set aside.
4. Mr.Jharkhandi Upadhaya, learned Additional
Public Prosecutor appearing on behalf of the State on the strength
of averments made in the counter affidavit which was filed on
27.8.2010, has vehemently opposed the prayer of the petitioner. It
has been submitted that allegations made in the first information
report was thoroughly investigated by the Police and thereafter
chargesheet was submitted against the petitioner. It was argued
that there were sufficient materials on record to suggest
commission of offence as alleged in the first information report
and as such the learned Magistrate while taking cognizance of
offence has committed no mistake. Learned counsel for the State
has heavily relied on annexure-1 to the counter affidavit which is a
notification issued under the provisions of S.C./S.T. Act. Learned
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counsel for the State has also produced a copy of an order passed
by a Bench of this Court in Cr.Misc.No. 45227 of 2008
(Chandrabhushan Tiwari alias Bare Tiwari and
others.Vrs.The State of Bihar and another). The said judgment
was delivered on 19.7.2010. Photo copy of the order has been kept
on record. It has been submitted that this court had occasioned to
examine the notification issued by the Government and in the said
case the accused persons were aggrieved with the order of
cognizance dated 24.5.2008 whereby the learned Magistrate had
taken cognizance of the offence under Section 3(i)(x) of the
S.C/S.T.Act. After noticing the notification whereby Assistant
Sub-Inspector of Police was authorized to investigate the case, this
court has repelled the argument advanced on behalf of the
accused-petitioners, that the case was not investigated by an
Officer either of the rank of Deputy Superintendent of Police or
above the rank of Deputy Superintendent of Police and as such,
the order of cognizance was legal. On the basis of judgment of this
Court dated 19.7.2010 as well as notification of authorization of
the State Government, Mr.Jharkhandi Upadhaya, learned counsel
for the State has submitted that the petition has got no merit and is
liable to be rejected.
5. Alternatively, it has been argued by learned
counsel for the petitioner that so far as notification issued by the
State Government authorizing the Assistant Sub-Inspector of
Police is concerned, that notification has been challenged in a writ
petition which has been admitted and the same is pending. It was
submitted that during the pendency of the writ petition it would be
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advisable to defer the hearing of the present case awaiting the
result of the said writ petition. Learned counsel for the petitioner,
of course has not given the number of the writ petition.
6. Besides questioning the jurisdiction of
Investigating officer, learned counsel for the petitioner has also
taken other grounds.
7. Besides hearing learned counsel for the parties, I
have also perused the materials available on the record as well as
judgments which have been referred to by the learned counsel for
the parties. On the basis of materials available on the record, the
Court is satisfied that the order of cognizance was passed rightly
and correctly. So far as judgments referred to in Smt.D.Jayamma,
Chadrashekhar Pani’s case (supra) and Mohan Choudhary’s
case (supra) are concerned, in those cases notification regarding
authorization of Assistant Sub-Inspector of Police for investigating
the offences under the S.C./S.T.Act was not examined and as such
no benefit can be given to the petitioner on the strength of the
aforesaid judgments. On the contrary, this Court in Cr.Misc.No.
45227 of 2008 (Chandrabhushan Tiwari alias Bare Tiwari and
others Vrs. State of Bihar and another) passed on 19.7.2010
had noticed a judgment passed by Hon’ble the Supreme Court in
the case of State of M.P. Vs. Chunni Lal alias Chunni Singh.
In that case, this court has distinguished the said case on the
ground that in the said case there was no such notification as
issued in the State of Bihar. This Court has also examined the
provisions contained in Section 9 of the S.C./S.T.Act, 1989 and
Rule 7 of the S.C./S.T. Rules, 1995 and thereafter had rejected the
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petition filed against the order of cognizance. Keeping in view the
fact that similar point has already been decided, this Court has no
option but to follow the same principle. In agreement with the
view expressed by this Court in Chandrabhushan Tiwari alias
Bare Tiwari and others (supra), this Court is of the opinion that
the present case is not a fit case for exercising inherent jurisdiction
in favour of the petitioner. The alternative argument which has
been raised by learned counsel for the petitioner that since the
writ petition questioning the notification of authorization of
Assistant Sub-Inspector of Police is pending this case may be kept
in abeyance is concerned, the Court is of the view that such
submission is required to be noticed only for its rejection.
Accordingly, I do not find any merit in the present case and the
petition stands rejected.
8. Keeping in view the fact that the present case
was pending since long and there was an order of stay, it is
desirable to direct the court below to proceed with the case
expeditiously.
9. In view of rejection of this petition, the interim
order of stay stands automatically vacated.
10. Let a copy of this order be sent to the court below
forthwith.
Patna High Court, ( Rakesh Kumar, J.) The 21st September, 2010 Md.S./AFR.