TaxTMI 
TaxTMI 
2017 (3) TMI 1803
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....il Appeal arising from SLP(C) No. 7317 of 2017 (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 year....
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....he Indian Penal Code, which is reproduced below: 201. Causing disappearance of evidence of offence, or giving false information to 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 yea....
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....ons contained in the impugned order (extracted above), it would be relevant to mention, that the Central Government, is vested with the Rule making authority, Under Section 23 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....
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....elow the rank of a Deputy Superintendent of Police. 7. The controversy in the present set of cases, arose out of a notification issued by the State of Bihar. The instant notification was issued by the State Government, in exercise of power vested 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 ref....
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....otification dated 03.06.2002-"...with effect from 31st March 1995...", by the High Court, was not expressly assailed, by either of the sides. 11. The second part of the conclusions drawn by the High Court in the impugned order, has been assailed by the State of Bihar, in the connected appeals. It would be pertinent 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 consi....
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....#39;SCST Act', and on the basis thereof contended, that from a plain and simple interpretation of the language adopted by the legislature, in Subsection (2) of Section 9, it would emerge, that the additional conferment of authority (with reference to arrest, investigation and prosecution), could only be extended 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....
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....he provisions of the 'SCST Act', it had the right and the responsibility, to vest the power of arrest, investigation and prosecution, in additional personnel. Stated differently, in case the State Government was satisfied, that the officers vested with such powers, in consonance with the provisions of the '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, f....
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....he power of arrest, investigation and prosecution, will necessarily require a conjoint reading of the provisions of the 'SCST Act' and the 'SCST Rules'. After the promulgation of the 'SCST Rules', undoubtedly, the Central Government provided for investigation, at the hands of an officer not below the 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', t....
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....465. Finding or sentence when reversible by reason of error, omission or irregularity.- (1) Subject to the provisions here in before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity 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 ....
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....itiation of proceedings. The language of this Section is in marked contrast with that of the other Sections of the group under the same heading, i.e. Sections 193 and 195 to 199. These latter Sections 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 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 compl....
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....ell settled that invalidity of the investigation does not vitiate the result unless a miscarriage of justice has been caused thereby. (emphasis supplied) This Court in the above judgment, while placing reliance on M.C. Sulkunte v. State of Mysore (1970) 3 SCC 513; Muni Lal v. Delhi Admn. (1971) 2 SCC 48; State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 and A.C. Sharma v. Delhi Admn. (1973) 1 SCC 726, concluded 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,....