1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.449 OF 2008
1. Jesamal s/o Arjundas Motwani,
aged about 50 years.
2. Harish s/o Jesamal Motwani,
aged about 31 years.
Both resident of Desaiganj,
Tahsil - Desaiganj,
District - Gadchiroli. .. Petitioners
.. Versus ..
1. The State of Maharashtra, through
P. S. O. Desaiganj,
District - Gadchiroli.
2. Superintendent of Police,
Gadchiroli.
3. Director, National Commission for
Scheduled Castes, State Office
(Maharashtra & Goa),
Government of India,
Kendriya Sadan, "A" Wing,
1st Floor, Opp. Akurdi Railway Station,
Nigdi Pradhikaran,
Pune. .. Respondents
::: Downloaded on - 09/06/2013 13:50:10 :::
2
Dinkar Murari Ramteke,
Aged Major, Occupation - Service,
R/o. Hanuman Ward,
Wadsa (Desaiganj),
District - Gadchiroli. .. Intervener
..........
Shri R.M. Daga, Advocate with Shri M.P. Khajanchi,
Advocate for the petitioners,
Shri S.S. Doifode, APP for respondent nos.1 and 2,
None appears for respondent no.3 though served,
Shri A.Y. Kapgate, Advocate for the applicant /
intervener.
..........
CORAM : K.J. ROHEE & A.P. BHANGALE, JJ.
DATE OF RESERVING THE JUDGMENT : SEPETMBER 5, 2008
DATE OF PRONOUNCING THE JUDGMENT : SEPTEMBER 9, 2008
JUDGMENT : (PER : K.J. ROHEE, J.)
1. Rule. Returnable forthwith. Heard finally by
consent of parties.
2. By this petition under Article 226 of the
Constitution of India, the petitioners inter alia seek to
quash communication dated 11.4.2008 (Annexure P-4
::: Downloaded on – 09/06/2013 13:50:10 :::
3
to the petition) issued by the Director, National
Commission for Scheduled Castes, State Office
(Maharashtra and Goa), Pune (R-3) to the
Superintendent of Police, Gadchiroli (R-2) to
re-investigate and to invoke the provisions of the
Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 in the event of prima facie case
against the petitioners.
3. Petitioner no.1 is the President of Municipal
Council, Desaiganj (District – Gadchiroli) and petitioner
no.2 is his son. They hold semi wholesale dealer’s
licence in Desaiganj Taluka. There is another semi
wholesale dealer for Desaiganj Taluka. As per the rules
equal quota of kerosene is required to be distributed to
both the licence holders.
4. Shri Dinkar s/o Murari Ramteke (hereinafter
referred to as the “Complainant”) is working as Senior
Clerk in Tahsil Office, Desaiganj. He deals with Food
Section. He belongs to Scheduled Caste (which caste is
::: Downloaded on – 09/06/2013 13:50:10 :::
4
nowhere mentioned by him). According to him, the
petitioners used to pressurize him for releasing more
quota of kerosene. However, the complainant did not
accede to their pressure. Petitioner no.1 is an
influential person in the town and has a criminal
record.
5. On 17.1.2007 around 2.00 PM the petitioners
came to the Tahsil Office, Desaiganj. They hurled filthy
abuses at the complainant. They threw the files from
the table of the complainant and threatened him to
implicate him in some matter. At that time, Naib
Tahsildar Shri Kurve and the entire staff in Tahsil Office
was present. On hearing the commotion Tahsildar Shri
Londhe called them to his chamber. When they went
to the chamber of the Tahsildar, the petitioners
continued to abuse and threaten the complainant.
According to the complainant, the petitioners were
knowing that the complainant belongs to Scheduled
Caste and hence even in the past they quarrelled with
::: Downloaded on – 09/06/2013 13:50:10 :::
5
him. He apprehends that the petitioners would involve
him in any false case.
6. On 19.1.2007 the complainant made an
application to the Tahsildar, Desaiganj requesting for
relieving him from Food Section and entrusting any
other section to him (there is no reference of the
incident dated 17.1.2007 in the said application).
7. On 20.1.2007 ig the complainant moved
Maharashtra State Revenue Employees Union
disclosing the incident dated 17.1.2007 for the first
time. Accordingly the Union requested Tahsildar,
Desaiganj to take action against the petitioners.
8. On 22.1.2007 the complainant lodged
written report about the incident dated 17.1.2007 to
Police Station, Desaiganj. On the basis of the said
report Crime No. 8/2007 under Sections 353, 294, 186
r/w 34 of the Indian Penal Code was registered against
the petitioners at Police Station, Desaiganj. The
complainant forwarded the copies of his report to the
::: Downloaded on – 09/06/2013 13:50:10 :::
6
Chairman, National Commission for Scheduled Caste,
New Delhi; Director, National Commission for
Scheduled Caste, State Office (Maharashtra and Goa),
Pune; Collector, Gadchiroli; Superintendent of Police
Gadchiroli; Sub-Divisional Officer, Desaiganj; Sub-
Divisional Police Officer, Kurkheda camp at Desaiganj;
Tahsildar, Desaiganj and the President, Maharashtra
State Revenue Employees Union, Branch Gadchiroli.
9. On 16.2.2007 the complainant moved the
Chairman of National Commission, New Delhi and the
Director, State Office, Pune. By communication dated
5.3.2007 the Director of State Office, Pune called for
the report of Superintendent of Police, Gadchiroli. On
5.4.2007 Superintendent of Police, Gadchiroli
submitted his report to the Director, State Office, Pune
informing him that cognizance of the report lodged by
the complainant was immediately taken. However, as
the report did not disclose any offence punishable
under the Scheduled Castes and the Scheduled Tribes
::: Downloaded on – 09/06/2013 13:50:10 :::
7
(Prevention of Atrocities) Act, 1989 crime was
registered only under various sections of the Indian
Penal Code. During investigation, statements of 16
persons including the staff members who were present
at the time of the alleged incident were recorded. The
investigation revealed that there was verbal exchange
of hot words between the complainant and the
petitioners about the quantity of kerosene quota.
However the petitioners neither hurled obscene abuses
nor abused on caste nor assaulted the complainant.
Superintendent of Police, Gadchiroli also informed that
investigation was still going on.
10. On 18.5.2007 Police Inspector of Police
Station, Desaiganj (R-1) submitted B Summary No. 1/
2007 before JMFC, Desaiganj.
11. It seems that the complainant again moved
the Director, State Office, Pune and by communication
dated 11.4.2008 the Director, State Office, Pune
expressed apprehension about the mode and method of
::: Downloaded on – 09/06/2013 13:50:10 :::
8
investigation done. The Director, State Office, Pune
requested Superintendent of Police, Gadchiroli to send
the copies of statements of all the concerned eye-
witnesses to the Commission, to re-look into the entire
issue and re-investigate the matter and adviced that in
the event of prima facie case, the provisions of the SC &
ST (Prevention of Atrocities) Act, 1989 be invoked. In
pursuance of the said communication, Police Inspector
Desaiganj moved an application before JMFC,
Desaiganj on 26.6.2008 praying for return of the
papers. The learned Magistrate allowed the prayer.
The petitioners have challenged the communication of
R-3 dated 11.4.2008.
12. R-1 (PSO, Desaiganj) and R-2 (SP,
Gadchiroli) filed affidavit-in-reply. They submitted that
the petitioners have criminal background and several
offences have been registered against them at PS
Desaiganj. They further submitted that R-3 (State
Office of the National Commission) has the power to
::: Downloaded on – 09/06/2013 13:50:10 :::
9
direct SP Gadchiroli and it has rightly issued the
communication dated 11.4.2008, in pursuance of which
an application was moved before JMFC, Desaiganj for
return of papers, who allowed it on 26.6.2008 which
impliedly permitted further investigation in the matter.
Respondent Nos.1 and 2, therefore, submitted that the
petition is liable to be dismissed.
13. Respondent no.3 (Director, State Office,
Pune) did not appear despite notice.
14. We have heard Shri R.M. Daga, Advocate
with Shri M.P. Khajanchi, Advocate for the petitioners;
Shri S.S. Doifode, APP for respondent nos.1 and
2/State and Shri A.Y. Kapgate, Advocate for the
complainant who was permitted to intervene.
15. It was vehemently submitted by the learned
counsel for the petitioners that R-3/State Office of the
National Commission has no power and jurisdiction to
direct reinvestigation of the matter. The learned
counsel for the petitioners fairly admitted that Sub-
::: Downloaded on – 09/06/2013 13:50:10 :::
10
Section 8 of Section 173 of the Cr.P.C. gives right to
further investigation. However, they urged that Sub-
Section 8 of Section 173 of the Cr.P.C. does not give
right to fresh investigation or reinvestigation. Sub-
Section 8 of Section 173 of the Cr.P.C. Provides that :
“Nothing in this section shall be deemed to
preclude further investigation in respect of anoffence after a report under sub-section (2) has
been forwarded to the Magistrate and, where
upon such investigation, the officer in charge ofthe police station obtains further evidence, oral
or documentary, he shall forward to the
Magistrate a further report or reports readingsuch evidence in the form prescribed.”
16. In support of this submission the learned
counsel for the petitioners relied on the following
cases :
(i) K. Chandrasekhar .vrs. State of Kerala and
others, (1998) 5 SCC 223, wherein it is held :
“From Section 173 Cr.P.C. it is evident that
even after submission of police report under
::: Downloaded on – 09/06/2013 13:50:10 :::
11
sub-section (2) on completion of
investigation, the police has a right of
“further” investigation under sub-section (8)
but not “fresh investigation” or
“reinvestigation”. The dictionary meaning of
“further” (when used as an adjective) is
“additional; more; supplemental”. “Further”
investigation therefore is the continuation of
the earlier investigation and not a fresh
investigation or reinvestigation to be started
ab initio wiping out the earlier investigation
altogether. This conclusion is supported also
by the fact that sub-section (8) clearly
envisages that on completion of further
investigation the investigating agency has to
forward to the Magistrate a “further” report
or reports – and not fresh report or reports –
regarding the “further” evidence obtained
during such investigation.”
(ii) The said case was followed in State of
Andhra Pradesh .vrs. A.S. Peter, (2008) 2 SCC 383,
in which it was observed as under :
“Indisputably, the law does not mandate
taking of prior permission from the::: Downloaded on – 09/06/2013 13:50:10 :::
12Magistrate for further investigation. Carrying
out of a further investigation even after filingof the charge-sheet is a statutory right of the
police. A distinction also exists betweenfurther investigation and reinvestigation.
Whereas reinvestigation without priorpermission is necessarily forbidden, further
investigation is not.”
(iii)
K. Chandrasekhar was also followed in
Ramachandran .vrs. R. Udhayakumar and others,
(2008) 5 SCC 413, in which it was held :
“Instead of fresh investigation there can be
further investigation if required under Section
173(8), Cr.P.C.
At this juncture it would be necessary to take
note of Section 173 of the Code. From a plainreading of the above section it is evident that
even after completion of investigation under
sub-section (2) of Section 173 of the Code, thePolice has right to further investigate under
sub-section (8), but not fresh investigation or
reinvestigation.
In view of the position of law as indicated
::: Downloaded on – 09/06/2013 13:50:10 :::
13above, the directions of the High Court for
reinvestigation or fresh investigation are clearlyindefensible. We, therefore, direct that instead
of fresh investigation there can be furtherinvestigation if required under Section 173(8)
of the Code.”
17. It was contended by Shri Kapgate, the
learned counsel for the intervener, that the
observations of the Apex Court in State of Andhra
Pradesh .vrs. A.S. Peter, (2008) 2 SCC 383, to the
effect that reinvestigation without prior permission is
necessarily forbidden indicate that reinvestigation is
not totally prohibited and it can be undertaken with
prior permission of the Court. In our view, it is difficult
to accept this submission because in the subsequent
case namely Ramachandran .vrs. R. Udhayakumar
and others, (2008) 5 SCC 413, the Apex Court struck
down the direction of the High Court for
reinvestigation or fresh investigation which clearly
shows that in any case reinvestigation is not
::: Downloaded on – 09/06/2013 13:50:10 :::
14
permissible. If that is so, then R-3 is not empowered to
direct R-2 to reinvestigate the matter. Consequently,
the communication dated 11.4.2008 in so far as it
directs reinvestigation of the matter deserves to be
quashed and set aside.
18. It was further urged by Shri Kapgate, the
learned counsel for the intervener that State Office of
the National Commission has the authority and
jurisdiction to direct reinvestigation. In this respect he
invited our attention to Article 338 (5) of the
Constitution of India. It would be proper to refer to the
said provision. Article 338 (5) provides that it shall be
the duty of the Commission :-
(a) to investigate and monitor all matters
relating to the safeguards provided for the Scheduled
Castes under this Constitution or under any other law
for the time being in force or under any order of the
Government and to evaluate the working of such
safeguards;
::: Downloaded on – 09/06/2013 13:50:10 :::
15
(b) to inquire into specific complaints with
respect to the deprivation of rights and safeguards of
the Scheduled Castes;
(c) to participate and advise on the planning
process of socio-economic development of the
Scheduled Castes and to evaluate the progress of their
development under the Union and any State;
(d) to present to the President, annually and at
such other times as the Commission may deem fit,
reports upon the working of those safeguards;
(e) to make in such reports recommendations as
to the measures that should be taken by the Union or
any State for the effective implementation of those
safeguards and other measures for the protection,
welfare and socio-economic development of the
Scheduled Castes; and
(f) to discharge such other functions in relation
to the protection, welfare and development and
advancement of the Scheduled Castes as the President
may, subject to the provisions of any law made by
Parliament, by the rule specify.
::: Downloaded on – 09/06/2013 13:50:10 :::
16
19. According to Shri Kapgate, Article 338 (5)
(a) & (b) of the Constitution of India, are in fact, the
powers of the Commission to monitor all matters
relating to the safeguards provided for the Scheduled
Castes under any law and to inquire into specific
complaints with respect to the deprivation of rights and
safeguards of the Scheduled Castes. According to him
it was perfectly within the powers of the State Office of
the National Commission to issue communication dated
11.4.2008 directing Superintendent of Police,
Gadchiroli to reinvestigate the matter.
20. The fallacy of the submission made on behalf
of the complainant can be seen from the judgment of
the Apex Court in All India Indian Overseas Bank SC
and ST Employees’ Welfare Association and others
.vrs. Union of India others (1996) 6 SCC 606, in
which the direction of the National Commission to the
Executive Director of Indian Overseas Bank to stop the
::: Downloaded on – 09/06/2013 13:50:10 :::
17
promotion process pending further investigation and
final verdict in the matter was held to be bad for want
of jurisdiction. The Apex Court observed that the
Commission having not been specifically granted any
power to issue interim injunctions, lacks the authority
to issue an order impugned. In this respect the Apex
Court observed that the powers of a Civil Court in
granting injunctions, temporary or permanent, do not
inhere in the Commission nor can such a power be
inferred or derived from a reading of clause (8) of
Article 338 of the Constitution. The above observations
of the Apex Court are also relevant and applicable to
the present case where it has not been shown that the
Commission has been specifically granted any power to
direct the State Police Officers to reinvestigate any
matter. We are satisfied that the State Office of the
National Commission has exercised jurisdiction not
vested in it by law. As such, in our view, the State
Office of the National Commission lacks the authority
::: Downloaded on – 09/06/2013 13:50:10 :::
18
of issuing communication dated 11.4.2008 and,
therefore, the same is held bad for want of jurisdiction.
21. It was lastly pointed out by Shri Kapgate that
after receipt of the communication dated 11.4.2008 by
Superintendent of Police, Gadchiroli for reinvestigation,
an application was moved before JMFC, Desaiganj on
26.6.2008 for return of the papers and it was allowed
by JMFC, Desaiganj. ig Thus in the present case
reinvestigation has been allowed by JMFC, Desaiganj
and as such the communication dated 11.4.2008 has
already been acted upon and it cannot be quashed.
22. We are unable to find any force in this
submission. It is true that on 26.6.2008 PI Desaiganj
moved an application before JMFC, Desaiganj by
referring to the direction of State Office of the National
Commission for reinvestigation and prayed for return of
the papers. The order passed by the Magistrate shows
that the prayer for return of papers was allowed. The
application does not contain any prayer for permission
::: Downloaded on – 09/06/2013 13:50:10 :::
19
to reinvestigate the crime, nor the order by Magistrate
indicates that he allowed reinvestigation into the crime.
As such it cannot be said that the communication dated
11.4.2008 has been acted upon and that it cannot be
quashed.
23. In the result we find that the communication
dated 11.4.2008 deserves to be quashed and set aside.
We, therefore, pass the following order :
ORDER
(i) The petition is partly allowed. The
communication dated 11.4.2008 issued by R-3 (State
Office of the National Commission) to the extent it
directs R-2 (Superintendent of Police, Gadchiroli) to
relook into the entire issue by reinvestigating the
matter is hereby quashed.
(ii) Rule is made absolute in above terms.
(A.P. BHANGALE) (K.J. ROHEE)
JUDGE JUDGE
....................
::: Downloaded on - 09/06/2013 13:50:10 :::