IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 913 of 1999()
1. KUNJAPPAN
... Petitioner
Vs
1. RAJAN
... Respondent
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent :SRI.P.SATHISAN
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :15/10/2007
O R D E R
K.R. UDAYABHANU, J.
CRL.R.P.NO. 913 OF 1999
DATED THIS THE 15th OCTOBER 2007
ORDER
The revision petitioner is the de facto complainant in
C.C.No.87/1997 in the court of the Special Judge for trial of offences
under Scheduled Caste Scheduled Tribes (Prevention of Atrocities) Act.
The accused, charge sheeted for the offence under Section 3(1)(x) of
the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter to be mentioned as ‘the Act’) and Section 3(1)
read with Section 181 of the Motor Vehicles Act were acquitted.
2. The prosecution case is that PW1, the de facto complainant
belonged to scheduled caste community/pulaya and that on account
of previous animosity on 8-5-1997 at about 1.30 p.m. while PW1
was standing at the Kizhakkambalam-Kavunkaparambu Road in front
of the house of one Krishnan Kartha, the accused two in number
came to the spot on a motor bike, got down and abused PW1 calling
his caste name and also threatened to do away with him. The first
accused, who was driving motor bike, was also not having a driving
licence.
3. The evidence adduced in the matter consisted of the
testimony of Pws.1 to 12 and Exts.P1 to P7. The defence got
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examined DW1.
4. The Sessions Judge found that it is established that PW1
belonged to the scheduled caste community and that the accused are
not members of the scheduled caste community and that they
belonged to the Christian community and Nair community respectively.
The evidence of PW7, Tahsildar who proved Ext.P6 certificate with
respect to PW1 and the evidence of PW3, the Village officer, who
proved Exts.P2 and P3 certificates do establish the community of the
de facto complainant and the accused. It was also found that the
accused abused PW1 by calling his caste name and threatened to kick
him and bring out his intestines. But the court observed to the effect
that it has not been established that PW1 was threatened and abused
on account of the fact that he belonged to the scheduled caste
community which is the necessary requisite to attract the offence
under the Act. It was also found that the investigation was not
conducted by a competent officer as the Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Rules, 1995(hereinafter to
be mentioned as ‘the Rules’) required that the investigation has to be
conducted by an officer not below the rank of a Deputy
Superintendent of Police. It was also found that no evidence was
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adduced to establish the fact that the first accused was not having a
valid driving licence. Hence, the accused were acquitted.
5. I find that so far as the finding of the court below is concerned
that the offence under the Act would not be attracted as there is no
evidence that PW1 was abused and threatened as he belonged to the
Scheduled caste is just erroneous. Abusing a person belonging to the
Scheduled caste by calling his caste name, whatever be the motive, I
find the offence under Section 3(1)(x) of the Act is squarely
attracted. All the same, I find that the prosecution cannot be
sustained in view of the fact that Rule 7 specifically mandates that
the investigation should be conducted by an officer not below the
rank of a Dy.S.P. The investigation herein was conducted by a Circle
Inspector of Police. The date of the incident is subsequent to the
commencement of the Rules. It has also to be noted that Rule 7
provides that the investigating officer shall be appointed by the State
Government/Director General of Police/Superintendent of police after
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 within the shortest possible time. The above condition stipulated
in Rule 7 was incorporated in view of the sensitive nature of the
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offence and the possibility of the abuse of the provisions against the
accused and also against the victim. I find that Rule 7 of the Rules
has been violated and the above is not disputed as well. The
contention of the counsel for the revision petitioner is that irregularity
in investigation is no reason to acquit the accused when it is
established that prejudice is caused, relying on the decision reported
in H.N.Rishbud v. State of Delhi, 1955 SC 196 unless prejudice is
caused to the accused and miscarriage of justice has resulted. I find
that the fact situation in the above cited decision was entirely
different. In the circumstances of the present case where there is a
specific provision with respect to investigation by a particular officer
specified in the statute, prejudice is a necessary concomitant in case
of violation of the mandatory statutory provision. Hence, I find that
no interference is called for in the order of the court below. Acquittal of
the accused is confirmed and the revision petition is dismissed.
K.R.UDAYABHANU, JUDGE
ks.
CRRP.913/1999 -5-
K.R.UDAYABHANU, J
CRL.R.P. NO. 913 of 1999
ORDER
15-10-2007