SHATRUGHNA SHRAVAN KAMBLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE. By consent rule is made returnable forthwith. Respondents waive service. Heard the Counsel.

(2.) THE present petition is placed before this Bench pursuant to the reference made by the learned Single Judge of this Court by the order dated 11th December, 2001 on the ground that there is conflict of decisions in the judgments delivered by the two learned Single Judges of this Court, one in the case of (Ramnath Sadashiv Koltharkar v. State of Maharashtra) reported in 1999 (5) Bom. C. R. 255 : 1999 (2) Mh. L. J. 743, and the other in the case of (Yunus Daud Bhura v. State of Maharashtra) reported in 2002 Bom. C. R. (Cri.) (N. B.)383 : 2001 (3) Mh. L. J. 783. Before both the courts the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Rule 7 of the Rules of 1995 framed under the said Act were under consideration. Rule 7 was framed by the Central Government whereby it is provided that an offence committed under the provisions of the above Act shall be investigated by a Police Officer not below the rank of the Deputy Superintendent of Police. In the first case it was held by D. G. Deshpande, J. , that the said rule is mandatory and non-compliance thereof vitiated the entire investigation. The charge-sheet filed on the basis of investigation by the officer lower in rank than the Competent Officer i. e. Dy. S. P. was quashed and set aside. In the second case Batta, J. , held that the investigation cannot be said to have been vitiated for non-compliance with the mandatory provisions unless prejudice is shown in which case appropriate orders can be passed for re-investigation as may be called for, wholly or partly, but the prosecution need not be quashed.

(3.) IN view of the aforesaid conflict of the decisions, when the present petition appeared before Mrs. Tahilramani, J. , for admission, the same was referred to the Division Bench to resolve the said conflict.