TaxTMI 
TaxTMI 
2017 (3) TMI 1803
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....filed by an Accused before this Court) invited our attention to Section 3(2) of the 'SCST Act', which is extracted hereunder: 3. Punishments for offences of atrocities.- (1)........... (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (i) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death; (ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be ....
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....screen offender.--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.--and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the im....
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....of the 'SCST Act'. The above provision is reproduced hereunder: 23. Power to make rules.- (1) The Central Government may, by notification in the Official Gazette, make Rules for carrying out the purposes of this Act. (2) Every Rule made under this Act shall be laid, as soon as may be after it ismade, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the Rule or both Houses agree that the Rule should not be made, the Rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. (emphasis is ours) 6. The Central Government indeed framed rules, namely, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as the 'SCST Rules') in exercise of its powers Under ....
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.... with it Under Section 9 of the 'SCST Act'. Section 9 aforesaid, is reproduced below: 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 or 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 Sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made there under. (3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub-section (1). (emphasis is ours) 8. The afo....
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....rtinent to mention, that the High Court in its conclusions, also recorded, that such of the investigations as were conducted by a police officer below the rank of Deputy Superintendent of Police, after the publication of the 'SCST Rules' (on 31.03.1995), and prior to the date of publication of the notification dated 03.06.2002 (i.e. prior to 09.08.2008), would "not" be treated as valid, and consequential prosecutions conducted in furtherance of such investigative processes (conducted by a police officer, below the rank of (Deputy Superintendent of Police), would be a nullity. 12. The first question which arises for our consideration is, with reference to the validity of Rule 7 of the 'SCST Rules', which was issued by the Central Government, in exercise of the power vested with it, Under Section 23 of the 'SCST Act'. Having given our thoughtful consideration to the Rule making authority, and the seriousness attached to the offences contemplated under the provisions of the 'SCST Act', and the policy depicted through the legislative intent expressed therein, as also, the serious and harsh consequences emerging from any violation of the provisions of th....
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....d to an officer, other than a police officer. 14. In order to appreciate the contention of learned Counsel for the Appellant accused, it is imperative for us to keep in mind the scheme, which was provided for by the legislature, in dealing with offences under the 'SCST Act'. In our considered view, at the time of introduction and commencement of the provisions of the 'SCST Act', Section 9 of the 'SCST Act' extended the power of arrest, investigation and prosecution, to all officers as would be entitled to carry out the aforesaid responsibilities, under the Code of Criminal Procedure. And as such, it needs to be appreciated, that when the provisions of the 'SCST Act', came to be worked out, at the outset, police personnel only, including those holding the rank(s) of Inspector, Sub-Inspector and Assistant Sub-Inspector, exercised the above powers. All these police personnel, were authorised by Section 9 of the 'SCST Act', to be a part of the investigative process. In addition, Under Section 9 aforementioned, a State Government was authorized, to delegate the power of investigation (in addition to, the power of arrest, and of prosecution), in r....
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....SCST Act', were insufficient to carry out the purposes of the 'SCST Act', the State Government could extend the power, to those not so expressly provided for. Accordingly, in case of inadequacy, to deal with the provisions of the 'SCST Act', the State Government was at liberty to further delegate the power of arrest, investigation and prosecution, to "... any officer of the State Government ...", for the fulfillment of the purposes of the 'SCST Act'. 16. We will now, attempt to decipher and understand, the intent of the Central Government, while framing Rule 7 of the 'SCST Rules'. Needless to mention, that on account of the harsh consequences of the offences contemplated under the provisions of the 'SCST Act', under the 'SCST Rules', the Central Government considered it expedient to vest the investigative power, for offences under the 'SCST Act' to officers, not below the rank of a Deputy Superintendent of Police. This determination at the hands of the Central Government, had an all India effect, and was not State specific. Therefore, when the provisions of the 'SCST Rules' were drawn, it is necessary to visualise....
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....rank of a Deputy Superintendent of Police. But, the rightful approach to the issue in hand would emerge from the query, whether a provision made under a rule, can negate a right extended through the parent legislation? The answer obviously has to be in the negative. This simple reasoning, unfolds the answer of the issue being debated. In our considered view, Section 9(1)(b) confers on the State Government, the power to further delegate the power of arrest, investigation and prosecution. This power vested with the State Government, through a non obstante clause, cannot be neutralized by any Rule framed Under Section 23 of the 'SCST Act'. The non obstante clause, would allow a State Government to exercise the power conferred on itirrespective of the provisions of the 'SCST Act', and also irrespective of the provisions of the 'SCST Rules', to delegate to "... any officer of the State Government ...", the power of arrest, investigation and prosecution. We are of the view, that the non obstante clause, extended to the State Government, power to overlook and provide differently, from the position contemplated under the 'SCST Act', as well as the 'SCST ....
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....ty in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. (emphasis is ours) Based on the aforesaid provision, it was the submitted, that an omission or irregularity with reference to investigation, would not have the effect of negating the prosecution itself, unless it is further shown, that the same had occasioned a failure of justice. In order to support his above contention, learned Counsel placed reliance on H.N. Rishbud and Inder Singh v. The State of Delhi, (1955) 1 SCR 1150. The questions that arose for consideration in the above judgment, were expressed in the following ....
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....d (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 proceeding 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 a failure of justice". xxx xxx xxx xxx It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. ....
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....ed as under: 19. As discussed earlier, the High Court erred in overlooking the gist of the order of the Special Judge permitting the Sub-Inspector to investigate. Further, having regard to the fact that no case of prejudice or miscarriage of justice by reason of investigation by the Sub-Inspector of Police is made out, the order of the High Court cannot be sustained in law. For the reasons stated above, these appeals are allowed and the order passed by the High Court is set aside. The concerned Court shall now act with utmost expedition. (emphasis supplied) 23. Having given a thoughtful consideration, to the contention advanced on behalf of the Appellant-State of Bihar, we are of the view, that the legal position as has been declared by this Court, is in complete consonance and conformity with the postulation contained in Section 465 of the Code of Criminal Procedure. This being the position, we have no hesitation in holding, that the second determination rendered by the High Court, to the extent that the investigation carried out by a police officer below the rank of a Deputy Superintendent of Police, after 31.03.1995 and prior to the issuance of the notification dated 03.06.....