JUDGMENT
Ramesh Madhav Bapat, J.
1. The learned Single Judge of this Court (E. Dharma Rao, J.) while dealing with Criminal Appeal No. 1016 of 1996 against the judgment of the Metropolitan Sessions Judge, Visakhapatnam passed in CC. No. 16 of 1996 dated 5-11-1996, felt that two learned Single Judges of this Court took conflicting views and therefore the matter was referred to this Bench for laying out the correct position of law.
2. The appellant in that appeal was charged for the offences punishable under Sections 447 and 506 (2) I.P.C. and under Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to “as the said Act”). Basing upon the complaint of P.W.1, a case was registered.
3. It was the allegation in the said complaint that on 17-5-1995 the accused trespassed into the mango garden of P.W.1, who is the Harijan Woman, and committed criminal intimidation by pushing her and further abused P.W.1 by saying “Mala Yedava”. After investigation into the crime, the Sub-Inspector of Police, Nakkapalle filed the charge-sheet against the accused. The case was committed for trial and the accused-appellant was found guilty of the offence punishable under Section 3 (1)(x) of the said Act and sentenced him to suffer R.I. for six months and to pay a fine of Rs. 50/- in default to suffer S.I. for one week. The accused-appellant was acquitted of the charges punishable under Sections 447 and 506 (2) I.P.C.
4. It appears from the judgment of the learned Single Judge of this Court that the learned counsel for the accused-appellant submitted that Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to “as the said Rules”) contemplates that the investigation has to be conducted by a Police Officer not below the rank of Deputy Superintendent of Police (for short “Dy. S.P.”) and the Investigating Officer shall be appointed by the State Government or Director-General of Police or Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigating it along with right lines within the shortest possible time and he shall complete the investigation on top priority within 30 days and submit the report.
5. It further appears from the record that the learned counsel for the accused-appellant made a submission before the learned Single Judge that investigation in this case was done by the Sub-Inspector of Police and therefore it is a violation of mandatory provisions of Rule 7 of the said Rules.
6. It further appears from the record that a ruling reported in Pentakota Koteswara Rao v. State of Andhra Pradesh, represented by its Public Prosecutor – 1999 (1) ALT (Crl.) 236 (A.P.) was brought to the notice of the learned single Judge by the learned counsel for the accused-appellant in which it was held by another learned single Judge of this Court that the rules framed under Section 23 of the said Act are statutory. Under Rule 7 of the said Rules, the investigation to be done by a Police Officer not below the rank of Dy. S.P. – In the instant case, investigation was done by a Sub-Inspector of Police -Violative of Rule 7 – Not disputed – Trial of the case cannot be set aside, unless illegality in the investigation brought about miscarriage of justice – Law well settled that illegality in investigation does not affect the competence of jurisdiction of the trial Court – Since no miscarriage of justice is shown in the instant case, the conviction cannot be set aside.
7. One more decision was brought to the notice of the learned single Judge by the learned counsel for the accused-appellant, who was dealing with Crl. A. No. 1016 of 1996 reported in Ramalinga Reddy @ D. Babu v. State of Andhra Pradesh reported in 1999 (2) ALD (Crl.) 436 = 1999 (1) ALT (Crl.) 287 in which another learned single Judge while dealing with Crl. A. No. 755 of 1996 took a different view that any investigation for an offence under the said Act, Rule 7 is a mandatory and the investigation of the offence under this Act by any other Officer other than Dy. S.P. especially authorised under this Act is illegal and conviction cannot be sustained.
8. The learned single Judge while dealing with Crl.A. No. 1016 of 1996 felt that two learned single Judges of this Court took conflicting views and therefore the matter was placed before the Hon’ble The Chief Justice, who referred to this Bench for laying out the correct position of law.
9. The question arises for our consideration as to whether Rule 7 framed under the said Rules is mandatory or directory?
10. The learned counsel Mr. C. Padmanabha Reddy appearing on behalf of the accused-appellant submitted at the Bar that the investigation has to be done by the Dy. S.P. especially empowered by the State Government or Director-General of Police or the Superintendent of Police taking into consideration the integrity, experience, sense of ability etc., and if the investigation done by any Police Officer below the rank of Dy. S.P., it is a violation of Rule 7 of the said Rules and therefore the entire trial is vitiated.
11. The learned counsel for the accused appellant herein further submitted that the rules framed under the Act by the State Government have a statutory force and therefore the strict compliance of the rule has to be made, failing which the trial will vitiate and also be violative of the rules framed by the State Government.
12. The learned counsel for the accused-appellant further submitted at the Bar that the Act was framed in the year 1989 and the Rules were framed in the year 1995. It has some meaning.
13. The learned counsel further submitted that after experiencing that the said Act is misused and therefore after a lapse of six years, the rule is framed so as to prevent the misuse of the Act. While framing the rule, the Government thought that in order to prevent the misuse of the Act, a responsible Officer of the rank of Dy.S.P. has to investigate the offence in question. The person holding a rank of Dy. S.P. has to be taken as a man of integrity and man of experience. If such an officer does the investigation, the misuse of the Act will be prevented; otherwise there was no meaning in framing such rule. Therefore, Rule 7 of the said rules has to be taken as a mandatory. In support of his contention, the learned counsel relied upon a ruling reported in D. Ramalinga Reddy @ D. Babu v. State of Andhra Pradesh, 1999 (1) ALT (Crl.) 287 = 1999 (2) ALD (Crl.) 436 in which the learned single Judge of this Court was pleased to hold that the rule is mandatory and if the rule is not complied with, the trial will get vitiated.
14. The learned counsel for the accused-appellant further relied upon a ruling reported in Pentakota Koteswara Rao v. State of Andhra Pradesh, 1999 (1) ALT (Crl.) 236 (A.P.) in which the learned single Judge was pleased to hold that Rule 7 of the said Rules, investigation not conducted by the Dy.S.P., conviction cannot be set aside on the sole ground when no prejudice is shown. The learned counsel further submitted at the Bar that the said ruling does not lay down the correct position of law. It was contended by the learned counsel for the accused-appellant that when the rule is framed empowering only the Officer of the rank of Dy.S.P. has to conduct the investigation, the rule must be strictly complied with. The learned counsel further submitted that the learned single Judge in the above case was pleased to hold that the accused has to show as to how the prejudice is caused to him. The learned counsel further submitted that by no stretch of imagination, the prejudice can be proved by the accused by leading any type of evidence. Therefore, it was submitted by the learned counsel for the accused-appellant that the aforesaid ruling does not lay down the correct position of law. If the accused is called upon to show the prejudice as to how the prejudice is caused, it will be difficult for him to lead such type of evidence. Moreover, it was contended by the learned counsel for the accused-appellant that investigation done by an Officer without being empowered itself is a prejudice and therefore it is not necessary for the accused to lead any independent evidence of having caused prejudice.
15. The learned counsel Mr. C. Padmanabha Reddy appearing for the accused-appellant also relied upon a ruling reported in Roy V.D. v. State of Kerala, AIR 2001 SC 137. It was a case decided by the Apex Court in which their Lordships were pleased to hold at para (18) of the judgment as under:
“It is well settled that the power under Section 482 of the Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot be but amount to abuse of the process of the Court in such a case not quashing the proceedings would perpetuate abuse of the process of the Court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 of the Cr.P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.”
16. This ruling was cited by the learned counsel for the accused-appellant to show the logic used by their Lordships in quashing the proceedings. Their Lordships were pleased to hold that the seizure and search are made by the Officer not authorised, itself is illegal and the proceedings were quashed. Therefore, it is evident from the ruling of the Apex Court that the investigation has to be done by a Police Officer, who is authorised to do under the Act and in effect such rule is mandatory one.
17. The learned counsel further relied upon a ruling reported in State of Punjab v. Baldev Singh, a Constitutional Bench of the Apex Court in which their Lordships were pleased to hold that under Narcotic Drugs and Psychotropic Substances Act, the accused has to be informed about his right to be searched before the Gazetted Officer or the Magistrate exercising his option empowered Officer however failed to conduct his search before the Gazetted Officer or the Magistrate may not vitiate trial but render his conviction usustainable because of inherent prejudice caused. In other words, their Lordships of the Apex Court were pleased to hold that the empowered Officer has to inform the accused about his vested right under the Act, which is a mandatory provision.
18. As against the rulings cited by the learned counsel for the accused-appellant, the learned Public Prosecutor appearing for the respondent-State pointed out a ruling reported in Gurbax Singh v. State of Haryana, (2001) 3 SCC 28. In para (9) their Lordships were pleased to hold as under:
“The learned counsel for the appellant next contended that from the evidence it is apparent that the IO has not followed the procedure prescribed under Sections 52, 55 and 57 of the NDPS Act. May be that the IO had no knowledge about the operation of the NDPS Act on the date of the incident as he recorded the FIR under Sections 9/1/78 of the Opium Act. In our view, Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal, which was affixed on the muddamal article, was handed over to the witness P.W.1 and kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in-charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the Chemical Analyser. Further, it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the IO, particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the Police. Further, it is the say of the Panch witness that muddamal seal used by the PSI was a wooden seal. As against this, it is the say of P.W.2 S.I./IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk.”
19. The learned Public Prosecutor relied upon a ruling reported in State of M.P. v. Bhooraji and Ors., in which their Lordships were pleased to hold that Court of competent jurisdiction meaning competence will remain unaffected by procedural lapse. No effect of statutory bar to take cognisance of certain cases on the question whether the Court was of competent jurisdiction or not.
20. The learned Public Prosecutor also relied upon a ruling reported in Pentakota Koteswara Rao v. State of Andhra Pradesh represented by Public Prosecutor (2 supra) in which the learned single Judge was pleased to hold that the provision of Rule 7 of the said Rules framed under Section 23 of the said Act is directive and not mandatory.
21. The learned Public Prosecutor further relied upon a ruling reported in Munnalal v. State of Uttar Pradesh, in which their Lordships were pleased to hold under Section 5 of the Prevention of Corruption Act, the provision is mandatory. Investigation in violation of the provision is illegal. However, the trial is not vitiated in absence of miscarriage of justice. 22. Further reliance was kept by the learned Public Prosecutor in a ruling reported in H.N. Rishbud and Anr. v. State of Delhi, of the judgment, their Lordships were pleased to hold as under:
“A number of decisions of the various High Courts have been cited before us bearing on the questions under consideration. We have also perused the recent unreported Full Bench judgment of the Punjab High Court. These disclose a conflict of opinion. It is sufficient to notice one argument based on Section 156 (2) of the Code on which reliance has been placed in some of these decisions in support of the view that Section 5 (4) of the Act is directory and not mandatory. Section 156 of the Code of Criminal Procedure is in the following terms:
“156. (1) Any officer in-charge of a police-station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Ch. 15 relating to the place of inquiry or trial. (1) Criminal Appeal Nos.25-D and 434 of 1953 disposed of on 3-5-1954.
(2) No proceeding of a police officer in any such case shall at any stage be called in question of the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.”
The argument advanced is that Section 5(4) and proviso to Section 3 of the Act are in substance and in effect in the nature of an amendment of or proviso to Section 156 (1) of the Code of Criminal Procedure. In this view, it was suggested that Section 156 (2) which cures the irregularity of an investigation by a person not empowered is attracted to Section 5 (4) and proviso to Section 3 of the 1947 Act and Section 5-A of the 1952 Act. With respect, the learned Judges appear to have overlooked the phrase ‘under this section’ which is to be found in Sub-section (2) of Section 156 of the Code of Criminal Procedure. What that Subsection cures is investigation by an officer not empowered under that section i.e., with reference to Sub-sections (1) and (3) thereof. Sub-section (1) of Section 156 is a provision empowering an officer in-charge of a police station to investigate a cognizable case without the order of a Magistrate and delimiting his power to the investigation of such cases within a certain local jurisdiction. It is the violation of this provision that is cured under Sub-section (2). Obviously Subsection (2) of Section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than a Deputy Superintendent of Police unless specifically authorised. But apart from the implication of the language of Section 156 (2), it is not permissible to read the emphatic negative language of Sub-section (4) of Section 5 of the Act or of the proviso to Section 3 of the Act, as being merely in the nature of an amendment of or a proviso to Sub-section (1) of Section 156 of the Code of Criminal Procedure.
Some of the learned Judges of the High Courts have called in aid Sub-section (2) of Section 561 of the Code of Criminal Procedure by way of analogy. It is difficult to see how this analogy helps unless the said Sub-section is also to be assumed as directory and not mandatory which certainly is not obvious on the wording thereof. We are, therefore, clear in our opinion that Section 5 (4) and proviso to Section 3 of the Act and the corresponding Section 5-A of Act 59 of 1952 are mandatory and not directory and that the investigation conducted in violation thereof bears the stamp of illegality.
9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.
A defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of S. Under the heading Conditions requisite for initiation of proceedings. The language of this section is in marked contrast with that of the other S. of the group under the same heading, i.e., Sections 193 and 195 to 199.
These latter S. regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190 (1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceedings antecedent to the trial. To such a situation Section 537 of the Code of Criminal Procedure which is in the following terms is attracted:
“Subject to the provisions herein before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned in failure of justice.”
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in Prabhu v. Emperior (1) and Lumbhardar Zutshi v. The King (2). These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the court. We are, therefore, clearly, also of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.”
23. Now we have to consider both the rulings cited to above and draw the conclusion as to whether Rule 7 of the said Rules framed under Section 23 of the said Act is mandatory or directory.
24. We have already observed in the foregoing paragraphs of the judgment that the said Act was enacted in the year 1989 whereas the Rules were framed in the year 1995 under Section 23 of the said Act. There was a delay of about six years in framing the rules. We have to consider why the Government framed this Rule. According to our logic, the Government experienced that the Act is being misused and therefore felt that under such Acts the investigation has to be done by a responsible Senior Officer and therefore they chose Dy. S.P. to make a” investigation. This Rule does not provide that all Dy. S.Ps., can investigate into the matter but provides that the Dy.S.P., named by the State Government or Director General of Police or Superintendent of Police has to nominate and select a Dy. S.P., with integrity and experience to investigate into such offences, which will prevent the misuse of the Act, and therefore in our considered view the provision contained in Rule 7 of the said Rules has to be interpreted as mandatory. In some of the rulings cited earlier, their Lordships held if there were procedural defects, the trial would not vitiate. The procedure means a procedure, which is adopted by the Court. For example in the case triable by a Court of Session, the charge-sheet has to be filed in the Court of the Magistrate at the first instance having territorial jurisdiction. The learned Magistrate has to commit the case to the Court of Session. Then only the Sessions Judge gets jurisdiction to try the offences. Unless the procedure prescribed under Section 193 Cr.P.C. is followed, the Sessions Court cannot take cognisance, which is triable by him and for some reason this procedure is not adopted and the case is tried directly by the Sessions Judge having jurisdiction will not vitiate the trial. Under the Criminal Procedure Code, the Magistrate has to simply commit the case to the Sessions, who has to act as post office. This procedure in case inadvertently not complied with and the judgment is rendered by the Sessions Court on receiving the charge-sheet directly in his Court will not vitiate the trial. But when we see the investigation has to be done by a Police Officer not below the rank of Dy. S.P. under Rule 7 of the said Rules framed under Section 23 of the said Act, it has some meaning. It is not the procedural defect, it is inherent defect in making the investigation and that would vitiate the entire trial.
25. The learned single Judge of this Court held that prejudice has to be shown. We are not able to imagine in the present type of case as to how the accused can show the prejudice caused to him if the investigation is made by the Police Officer below the rank of Dy.S.P. and therefore the investigation by itself done by any person not authorised under Rule 7 has to be treated as prejudice being caused to the accused and therefore we have come to the conclusion that Rule 7 framed under Section 23 of the said Act is mandatory and it has to be strictly complied with, which is not the procedural defect but it is inherent defect in conducting the investigation under the said Act and we further hold that if the investigation is done by any other Officer below the rank of Dy.S.P. will vitiate the trial. Therefore, we answer the point accordingly.
26. This Court finds no reason when the law provides that investigation is to be made by named Dy. S.P. why the investigation should not be done by Dy.S.P. alone as if there is dearth of Dy.S.Ps., in this State and then to create complications and give scope for the accused to get acquittal.
27. All the matters be placed before the learned single Judge for adjudicating the same as per the observations made by us in this judgment.