LAWS(BOM)-2004-6-29

ABDUL GHAFFAR SHAIKH JAFAR Vs. STATE OF MAHARASHTRA

Decided On June 17, 2004
ABDUL GHAFFAR SHAIKH JAFAR Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) HEARD the learned Counsel for the parties.

(2.) THE applicant is an accused in Criminal Case No. 14 of 1995 pending before the 1 st Additional Sessions Judge, Nagpur. He challenges the proceedings filed against him, more particularly, under the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, 1989, on the ground that the investigation has not been carried out by the Deputy Superintendent of Police, as required under Rule 7 of the Act. The charge against the applicant has also been framed by the trial Judge under sections 294 and 506 Part II of indian Penal Code, and under section 3 (l) (x) of the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "act" ). After framing of the charge, the applicant filed application dated 31 -1-2000 before the trial Judge, to drop the proceeding, under the Act, on the ground that the investigation in the case has been carried out contrary to rule 7 of the Act. In the said application, the applicant has stated that the proceedings against him under the Act are liable to be dropped since the investigation was not carried out in conformity with the law. It was the sub-mission of the applicant before the trial Judge that since the investigation was carried out by the Police Sub-Inspector and not by Deputy Superintendent of Police, as required in terms of Rule 7 of the Act, the proceedings were' not maintainable and they have to be dropped. The objection was overruled by order dated 31-1-2000 passed by the trial Judge. Aggrieved by the said order, the present proceedings are filed. Per contra, Mr. Doifode, the learned Additional Public Prosecutor has submitted that in the present case the charge has already been framed against the applicant, and that the objection taken by the applicant was not maintainable and this objection could be taken by the applicant at the time to final hearing. Mr. Doifode, the learned Additional Public Prosecutor relied upon the judgment of this Court reported in 2002 (Supp. 2) Bom. C. R. (N. B.)98 ; 2001 Cri. LJ. 2742 (Nandkishor Rampal Lohiaya and orthers v. State of Maharashtra), and submitted that in view of the said judgment, the objection taken by the applicant after framing of charge was not maintainable and the said objection should be considered after the evidence is led by the parties.

(3.) I have considered the submissions made by both the sides. No doubt, in the judgment reported in 1999 (5) Bom. C. R, 255 : 1999 (2) Mh. L. J. 743 (Ramnath sadashiv Kottharkar v, State of Maharashtra), this Court has held that Rule 7 of the Act is mandatory and the proceedings initiated upon the investigation being carried out by Police Officer not below the rank of Deputy Superintendent of Police were not maintainable. However, it is pertinent to note that in the said case, the objection by the accused was taken before framing of charge and the said judgment came to be rendered in the background that the objection was taken prior to framing of charge. Admittedly, in the present case, objection was taken by the applicant after framing of charge. Therefore, having regard to the law laid down by this Court in case in Nandkishor Rampal Lohiya and others v. State of Maharashtra (supra), it is clear that after framing of charge, the accused is not entitled to take any objection as to the maintainability of the case under the Act, on the ground that the investigation was not carried by the Deputy Superintendent of Police. The ratio of this case squarely applies to the facts of the present case. It is also pertinent to note that the applicant is also charged for the offences punishable under sections 294 and 506 Part II of the Indian Penal Code, and therefore, this is not a fit case wherein the entire proceedings against the applicant are liable to be quashed. Even if the argument of the applicant is accepted, at the most the proceedings under the Act will have to be quashed and the trial is go on before the Magistrate so far as the offences under sections 294 and 506 Part II of the Indian Penal Code are concerned. Having regard to the law laid down by this Court in 2001 Cri. L. J. 2742 (supra), in my opinion, the applicant was not entitled to take objection at the belated stage. Needless, to say that the applicant will be entitled to take this ground after evidence is led by both the parties. If this objection is taken by the applicant, the trial Judge shall decide the same on its own merits.