High Court Patna High Court

Tarique Ahmad @ Tarique Alam vs State Of Bihar on 21 September, 2010

Patna High Court
Tarique Ahmad @ Tarique Alam vs State Of Bihar on 21 September, 2010
Author: Rakesh Kumar
                  CRIMINAL MISCELLANEOUS No.31887 OF 1999
                                         ------

In the matter of an application under section 482 of
the Code of Criminal Procedure.

——-

TARIQUE AHMAD @ TARIQUE ALAM
son of Md.Sadique, resident of village Belua,
P.S.Kishanganj, District Kishanganj
…….. …….Petitioner
Versus
STATE OF BIHAR … …… …….Opp. Party

———-

For the petitioner : M/s. Najmul Hoda, Firoz Ahamd and
Dr.Alok Kumar Alok
For the State : Mr.Jharkhandi Upadhayay, Addl.P.P.

———

PRESENT
THE HON’BLE MR. JUSTICE RAKESH KUMAR

——-

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
2

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
3

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
4

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
5

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
6

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.