whether the discharge of accused from the offences under Sections 302/34, 404/34
of the IPC and Section 3(2)(v) of the Scheduled Castes and
1
Scheduled Tribes(Prevention of Atrocities) Act, 1989(hereinafter being referred to as “Act, 1989”) at the advanced stage of the trialwhen almost all the material
witneses have been examined by the prosecution is correct ?
Apex court held that
This question has been examined by a twoJudge 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
8
police officer in accordance with the provisions of the
Code cannot be quashed for noninvestigation 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 chargesheet 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)
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 chargesheet deserves to proceed in an appropriate competent Court of jurisdiction for the offence punishable under the IPC, notwithstanding the fact that the chargesheet could not have proceeded confined to the offence under Section 3 of the Act, 1989.
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.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 123 OF 2020
(ARISING OUT OF SLP(CRL.) NO(S). 11369 OF 2019)
STATE OF MADHYA PRADESH ….APPELLANT(S)
VERSUS
BABBU RATHORE & ANR. ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. 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
1
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.
3. 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 postmortem on the
2
body of the deceased was conducted which proved death was
unnatural and caused by asphyxia due to strangulation.
4. The preliminary investigation confirmed that the deceased was
last seen with the present respondents. After registration of FIR,
investigation was conducted by the SubInspector and chargesheet
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.
5. During proceedings in Special Case No. 37/11, statement of
the material witnesses PW 2 Narsu, PW 4 Kamla Prajapati and PW 5
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
3
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.
6. 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.
7. Learned counsel for the appellant submits that the
respondents were charged for offences punishable under Section
302/34, 404/34 of the IPC and Section 3(2)(v) of the Act, 1989 and
4
in the given circumstances, the High Court has committed an
apparent error in quashing the proceedings in discharging the
respondents on a hyper technical ground that the investigation has
been conducted by an Officer below the rank of Deputy
Superintendent of Police and discharging the respondents in the
given circumstances is not sustainable in law and that too when the
trial is at the advanced stage and all the material prosecution
witnesses have been examined and the judgment of the High Court
needs to be interfered by this Court.
8. Per contra, learned counsel for the respondents, while
supporting the order of the High Court, confirming judgment of the
trial Court dated 24th July, 2015 submits that if the very
investigation was found to be faulty and not in compliance with the
mandate of Section 9 of Act, 1989 read with Rule 7 of the Rules,
1995, the structure built up by the appellant could not sustain on
the weak foundation, and this fact has not been disputed by the
appellant that investigation was conducted by an Officer below the
rank of Deputy Superintendent of Police which is the mandatory
requirement under Rule 7 of the Rules, 1995, and in the given
5
circumstances, no error has been committed by the learned Special
Judge in discharging the respondents and confirmed by the High
Court vide its order impugned dated 9th May, 2019.
9. For appreciating the rival submissions, we need to refer
Section 9 of the Act, 1989 and Rule 7 of the Rules, 1995 which are
as under:
“9. Conferment of powers.—(1) Notwithstanding
anything contained in the Code or in any other
provision of this Act, the State Government may, if it
considers it necessary or expedient so to do,—
(a) for the prevention of and for coping
with any offence under this Act, or
(b) for any case or class of group of cases
under this Act, in any district or part
thereof, confer, by notification in the
Official Gazette, on any officer of the State
Government the powers exercisable by a
police officer under the Code in such
district or part thereof or, as the case may
be, for such case or class or group of
cases, and in particular, the powers of
arrest, investigation and prosecution of
persons before any Special Court.
(2) All officers of police and all other officers of
Government shall assist the officer referred to in subsection (1) in the execution of the provisions of this Act
or any rule, scheme or order made thereunder.
(3) The provisions of the Code shall, so far as may be,
apply to the exercise of the powers by an officer under
subsection (1).”
6
“Rule 7. Investigating officer—(1) An offence
committed under the Act shall be investigated by a
police officer not below the rank of a Deputy
Superintendent of Police. 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.
(2) The investigating officer so appointed under subrule (1) shall complete the investigation on top priority
within thirty days and submit the report to the
Superintendent of Police who in turn will immediately
forward the report to the Director General of Police of
the State Government.
(3) The Home Secretary and the Social Welfare
Secretary to the State Government, Director of
Prosecution, the officer in charge of prosecution and
the Director General of Police shall review by the end of
every quarter the position of all investigations done by
the investigating officer.”
10. 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,
7
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 noninvestigation of the offence under Section 3 of the Act, 1989 by a
competent police officer. This question has been examined by a
twoJudge 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
8
police officer in accordance with the provisions of the
Code cannot be quashed for noninvestigation 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 chargesheet 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)
11. 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 chargesheet deserves to proceed in an appropriate
competent Court of jurisdiction for the offence punishable under
the IPC, notwithstanding the fact that the chargesheet could not
9
have proceeded confined to the offence under Section 3 of the Act,
1989.
12. 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.
13. The appeal is partly allowed in terms as indicated above.
14. Pending application(s), if any, stand disposed of.
…………………………….J.
(INDU MALHOTRA)
……………………………J.
(AJAY RASTOGI)
NEW DELHI
January 17, 2020
10
witneses have been examined by the prosecution is correct ?
Apex court held that
This question has been examined by a twoJudge 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
8
police officer in accordance with the provisions of the
Code cannot be quashed for noninvestigation 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 chargesheet 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)
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 chargesheet deserves to proceed in an appropriate competent Court of jurisdiction for the offence punishable under the IPC, notwithstanding the fact that the chargesheet could not have proceeded confined to the offence under Section 3 of the Act, 1989.
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.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 123 OF 2020
(ARISING OUT OF SLP(CRL.) NO(S). 11369 OF 2019)
STATE OF MADHYA PRADESH ….APPELLANT(S)
VERSUS
BABBU RATHORE & ANR. ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. 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
1
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.
3. 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 postmortem on the
2
body of the deceased was conducted which proved death was
unnatural and caused by asphyxia due to strangulation.
4. The preliminary investigation confirmed that the deceased was
last seen with the present respondents. After registration of FIR,
investigation was conducted by the SubInspector and chargesheet
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.
5. During proceedings in Special Case No. 37/11, statement of
the material witnesses PW 2 Narsu, PW 4 Kamla Prajapati and PW 5
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
3
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.
6. 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.
7. Learned counsel for the appellant submits that the
respondents were charged for offences punishable under Section
302/34, 404/34 of the IPC and Section 3(2)(v) of the Act, 1989 and
4
in the given circumstances, the High Court has committed an
apparent error in quashing the proceedings in discharging the
respondents on a hyper technical ground that the investigation has
been conducted by an Officer below the rank of Deputy
Superintendent of Police and discharging the respondents in the
given circumstances is not sustainable in law and that too when the
trial is at the advanced stage and all the material prosecution
witnesses have been examined and the judgment of the High Court
needs to be interfered by this Court.
8. Per contra, learned counsel for the respondents, while
supporting the order of the High Court, confirming judgment of the
trial Court dated 24th July, 2015 submits that if the very
investigation was found to be faulty and not in compliance with the
mandate of Section 9 of Act, 1989 read with Rule 7 of the Rules,
1995, the structure built up by the appellant could not sustain on
the weak foundation, and this fact has not been disputed by the
appellant that investigation was conducted by an Officer below the
rank of Deputy Superintendent of Police which is the mandatory
requirement under Rule 7 of the Rules, 1995, and in the given
5
circumstances, no error has been committed by the learned Special
Judge in discharging the respondents and confirmed by the High
Court vide its order impugned dated 9th May, 2019.
9. For appreciating the rival submissions, we need to refer
Section 9 of the Act, 1989 and Rule 7 of the Rules, 1995 which are
as under:
“9. Conferment of powers.—(1) Notwithstanding
anything contained in the Code or in any other
provision of this Act, the State Government may, if it
considers it necessary or expedient so to do,—
(a) for the prevention of and for coping
with any offence under this Act, or
(b) for any case or class of group of cases
under this Act, in any district or part
thereof, confer, by notification in the
Official Gazette, on any officer of the State
Government the powers exercisable by a
police officer under the Code in such
district or part thereof or, as the case may
be, for such case or class or group of
cases, and in particular, the powers of
arrest, investigation and prosecution of
persons before any Special Court.
(2) All officers of police and all other officers of
Government shall assist the officer referred to in subsection (1) in the execution of the provisions of this Act
or any rule, scheme or order made thereunder.
(3) The provisions of the Code shall, so far as may be,
apply to the exercise of the powers by an officer under
subsection (1).”
6
“Rule 7. Investigating officer—(1) An offence
committed under the Act shall be investigated by a
police officer not below the rank of a Deputy
Superintendent of Police. 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.
(2) The investigating officer so appointed under subrule (1) shall complete the investigation on top priority
within thirty days and submit the report to the
Superintendent of Police who in turn will immediately
forward the report to the Director General of Police of
the State Government.
(3) The Home Secretary and the Social Welfare
Secretary to the State Government, Director of
Prosecution, the officer in charge of prosecution and
the Director General of Police shall review by the end of
every quarter the position of all investigations done by
the investigating officer.”
10. 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,
7
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 noninvestigation of the offence under Section 3 of the Act, 1989 by a
competent police officer. This question has been examined by a
twoJudge 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
8
police officer in accordance with the provisions of the
Code cannot be quashed for noninvestigation 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 chargesheet 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)
11. 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 chargesheet deserves to proceed in an appropriate
competent Court of jurisdiction for the offence punishable under
the IPC, notwithstanding the fact that the chargesheet could not
9
have proceeded confined to the offence under Section 3 of the Act,
1989.
12. 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.
13. The appeal is partly allowed in terms as indicated above.
14. Pending application(s), if any, stand disposed of.
…………………………….J.
(INDU MALHOTRA)
……………………………J.
(AJAY RASTOGI)
NEW DELHI
January 17, 2020
10
