Investigation In IPC Offences Cannot Be Quashed For Non Investigation Of SC-ST Offences By Competent Police Officer: Supreme Court

It is worth noting that the Supreme Court most recently on January 17, 2020 in State of Madhya Pradesh Vs Babbu Rathore & Anr. In Criminal Appeal No(S). 123 of 2020 (Arising out of SLP (Crl.) No(S). 11369 of 2019) has clearly and convincingly observed that when the offence complained are both under the Indian Penal Code and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non-investigation of the offence under Section 3 of the Act by a competent police officer. The Apex Court Bench was in concurrence with the High Court’s observation to the extent that an officer below that rank cannot act as investigating officer in holding investigation in reference to the offences committed under any provisions of the SC and ST Act. Very rightly so!

To start with, this notable judgment authored by Justice Ajay Rastogi for himself and Justice Indu Malhotra sets the ball rolling by first and foremost observing in para 2 after granting leave in para 1 that, “This appeal is directed against the judgment of the High Court of Madhya Pradesh dated 9th May, 2019 confirming Order of the trial Judge dated 24th July, 2015 whereby the respondents have been discharged from the offences under Sections 302/34, 404/34 of the IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter being referred to as “Act, 1989”) at the advanced stage of the trial when almost all the material witnesses have been examined by the prosecution which has given rise to this appeal.”

To recapitulate, para 3 then discloses that, “The background facts in nutshell are that deceased Baisakhu, in a drunken state met Kamla Prajapati on road to ward no. 10, Pasia, Thana Anuppur, Anuppur, Madhya Pradesh. Kamla Prajapati took him to his house, but the deceased Baisakhu stated that he had to return two hundred fifty rupees to Nasru and requested him to take to his place. Upon insistence of deceased Baisakhu, Kamla Prajapati took him to the house of Nasru where accused Babbu Rathore was drinking liquor. Baisakhu stated that he wanted to have liquor so leaving him there, Kamla Prajapati returned back. When Ujaria Bai, the wife of deceased, went to house of Nasru to inquire about her husband, then Nasru told her that deceased Baisakhu had left with Babbu Rathore. The dead body of Baisakhu was recovered on 14th July, 2011. Information of unnatural death was recorded by police and post-mortem on the body of the deceased was conducted which proved death was unnatural and caused by asphyxia due to strangulation.”

Be it noted, para 4 then states that, “The preliminary investigation confirmed that the deceased was last seen with the present respondents. After registration of FIR, investigation was conducted by the Sub-Inspector and charge-sheet came to be filed against the present respondents for offences punishable under Section 302/34, 404/34 of the IPC and Section 3(2)(v) of the Act, 1989. The trial Court took cognizance of the matter and Special Case No. 37/11 was registered.”

To put things in perspective, para 5 then enunciates that, “During proceedings in Special Case No. 37/11, statement of the material witnesses PW2 Narsu, PW4 Kamla Prajapati and PW5 Uparia Bai, wife of deceased Baisakhu were recorded. It appears from the record that at the advanced stage of the trial, a grievance was raised by the respondents that they had been charged under Section 3(2)(v) of the Act, 1989 and since the investigation has been conducted by an Officer below the rank of Deputy Superintendent of Police which is the mandate of law as provided under Section 9 of the Act, 1989 read with Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter being referred to as the “Rules, 1995”), the very investigation is faulty and illegal and that deserves to be quashed and set aside and in consequence thereof, further proceedings in trial does not hold good and respondents deserve to be discharged.”

As it turned out, para 6 then points out that, “Learned trial Court, while taking note of Section 9 of the Act, 1989 and Rule 7 of the Rules, 1995 held that the investigation has been conducted by an Officer below the rank of Deputy Superintendent of Police and is without authority and illegal and in consequence thereof, discharged the respondents not from the charges levelled against them under the provisions of the Act, 1989 but also from the provisions of the IPC for which there was no requirement of the investigation to be conducted by an Officer not below the rank of Deputy Superintendent of Police under judgment dated 24th July, 2015 which came to be challenged before the High Court of Madhya Pradesh and dismissed by a cryptic order dated 9th May, 2019.”

More crucially, it is then observed in para 10 that, “By virtue of its enabling power, it is the duty and responsibility of the State Government to issue notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of Police. Rule 7 of the Rules 1995 provides rank of investigation officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer in holding investigation in reference to the offences committed under any provisions of the Act, 1989 but the question arose for consideration is that apart from the offences committed under the Act 1989, if the offence complained are both under the IPC and the offence enumerated in Section 3 of the Act, 1989 and the investigation being made by a competent police officer in accordance with the provisions of the Code of Criminal Procedure (hereinafter being referred to as the “Code”), the offences under IPC can be quashed and set aside for non-investigation of the offence under Section 3 of the Act, 1989 by a competent police officer. This question has been examined by a two-Judge Bench of this Court in State of M.P. Vs. Chunnilal @ Chunni Singh 2009 (12) SCC 649. Relevant para is as under:-

“By virtue of its enabling power it is the duty and responsibility of the State Government to issue a notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of Police for different areas in the police districts. Rule 7 of the Rules provided rank of investigating officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer.

The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read lead to an irresistible conclusion that the investigation of an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid. But when the offence complained are both under IPC and any of the offence enumerated in Section 3 of the Act the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non-investigation of the offence under Section 3 of the Act by a competent police officer. In such a situation the proceedings shall proceed in an appropriate court for the offences punishable under IPC notwithstanding investigation and the charge-sheet being not liable to be accepted only in respect of offence under Section 3 of the Act for taking cognizance of that offence.”

(emphasis supplied)

Most crucially, it is then held without mincing any words in para 11 that, “Undisputedly, in the instant case, the respondents were charged under Sections 302/34, 404/34 IPC apart from Section 3(2)(v) of the Act, 1989 and the charges under IPC have been framed after investigation by a competent police officer under the Code, in such a situation, in our view, the High Court has committed an apparent error in quashing the proceedings and discharging the respondents from the offences committed under the provisions of IPC where the investigation has been made by a competent police officer under the provisions of the Code. In such a situation, the charge-sheet deserves to proceed in an appropriate competent Court of jurisdiction for the offence punishable under the IPC, notwithstanding the fact that the charge-sheet could not have proceeded confined to the offence under Section 3 of the Act, 1989.”

To state the obvious, what follows next is stated in para 12 that, “The order impugned is accordingly restricted to the offence under Section 3 of the Act, 1989 and not in respect of offences punishable under the IPC. The Special Case No. 37/11 is restored on the file of the Special Court, District Anuppur (MP) and the trial Court may proceed further and conclude the trial expeditiously in respect of offences punishable under the IPC in accordance with law.”

To conclude, it is a very well reasoned and well concluded apt decision. It has very rightly held that investigation in IPC offences cannot be quashed for non-investigation of SC-ST offences by competent police officer. There can be no denying or disputing it!

Sanjeev Sirohi

Will The Trial Be Vitiated If The Evidence Of Witnesses Were Taken In The Absence Of Accused?

Will the entire trial and conviction be vitiated for non-compliance of Section 273 IPC? Can de novo trial be ordered if it is found that during the trial several witnesses were examined in absentia of the accused ? The Supreme Court is considering this issue in Atma Ram vs. State of Rajasthan, and has stayed the pronouncement of judgment by the Trial Court after conducting de novo trial. Senior Advocate Ranjit Kumar has been appointed as Amicus Curiae by the bench comprising of Justice Uday Umesh Lalit and Justice Indu Malhotra.

The court has posted the matter on 13th March for further consideration. It said: “Once we are seized of the matter, in the fitness of things, let there not be any pronouncement of the judgment. We therefore, direct the trial court not to pronounce the judgment and await further orders by this Court.” High Court Ordered De Novo Trial Atma Ram and three others were convicted by the Trial Court and were sentenced to death. Before the Rajasthan High Court, they took a contention that entire trial is vitiated because the trial court recorded statements of a large number of prosecution witnesses without ensuring their presence in the proceedings. Order sheets of the Trial Court also categorically mentioned that the accused had not been brought to the court from the prison. The High Court held that the proceedings undertaken by the trial court to the extent of recording of the statements of witnesses in absentia of the accused cannot be considered to be lawful as they were held contrary to the mandate of Section 273 CrPC. The High Court had observed:

“The accused were in judicial custody. No satisfaction was recorded by the court in any of the proceedings that presence of the accused was not necessary in the court. Rather, the trial court, time and again intimated the jail authorities that the accused should be brought to the court but then failed to ensure that the direction is complied. Needless to say that the right of the accused to see the evidence being taken in their presence is recognized as an absolute right by Section 273 Cr.P.C. and the same emanates from the principles of natural justice and fair trial. Thus, without any doubt, statements of the witnesses recorded by the trial court in absence of the accused more particularly when they were in judicial custody cannot be treated as having been recorded strictly in accordance with law.”

But, while holding that the conviction recorded was unsustainable it also considered the issue whether, the entire trial should be declared vitiated; or that the matter should be remanded to the trial court for recording the statements of these witnesses afresh by exercising powers under Section 391 Cr.P.C. or that the impugned judgment should be set aside and the de-novo trial directed by exercising powers under Section 386(b) Cr.P.C? The court held that there is no straightjacket formula in any of the precedent that a de-novo trial cannot be directed in any condition as it would render Section 386(b) Cr.P.C. redundant.

The court then ordered that fresh trial/de-novo by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court. It said: “We feel that in order to do complete justice to the accused as well as to the victims, the entire case cannot be thrown out by holding the proceedings to be vitiated on account of the mistakes committed by the trial Judge or the prison authorities concerned. A fresh trial/de-novo has to be ordered by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court.”

 

Supreme Court directs Disaster Management sub-committee, for decrease in water level at Mullaperiyar Dam

NEW DELHI: The Supreme Court of India directed Disaster Management sub-committee of Mullaperiyar Dam to consider reducing the water level up to 139 feet from the present 142 feet. A bench of Chief Justice Dipak Misra and Justice Indu Malhotra took a serious note of the grim flood situation in Kerala and asked the sub-committee to hold an urgent meeting tomorrow morning with the Centre’s National Crisis Management Committee (NCMS).

An effort has to be made to bring down the water level of the Mullaperiyar Dam to 139 feet so that the people living downstream should not live in constant fear,” the bench said.

At least 75 people have died since August 8 after incessant rains lashed Kerala and triggered massive floods and landslides.

However, Tamil Nadu government opposed the plea with regard to bringing down the water level in the dam, saying that the inflow of water presently is over 12,000 cusec in contrast to the outflow of 5,000 cusec.

Supreme Court, questioned Government over adultery law

NEW DELHI: The Supreme Court questioned the Centre’s stand defending the adultery law and his submission that the penal provision on adultery was needed to save the sanctity of marriage, saying it does not appeal to common sense that a woman cannot prosecute her husband for adulterous relationship.

A five-judge Constitution Bench headed by Chief Justice Dipak Misra asked how it preserved the “sanctity” when with the extra-marital affair becomes non-punishable if the woman’s husband stands by her. The bench headed by Chief Justice Dipak Misra, which reserved its verdict on a plea challenging Section 497 of the IPC.

Other judges on the bench are Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra.

The Chief Justice further said, “We are not questioning the legislature’s competence to make laws, but where is the ‘collective good’ in Section 497 of IPC?

Arguing on behalf of the Centre, Additional Solicitor General Pinky Anand said, “In India, marriage is a sacred institution, so any intrusion into that is something which should attract penal consequences.”

“Where is the sanctity of marriage when the husband can consent?” asked Justice R F Nariman. The bench said the law in question was only “targetting” married women and not the men who can have relationships with unmarried women.