ANANTA KUMAR SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner, who is the accused in G.R. Case No. 108 of 1999 of the Court Sessions Judge -cum -Special Judge, Cuttack, has prayed to quash the order of cognizance as per the impugned order dated 27.8.1999. In that case cognizance of the offence under Ss. 341, 323, 294, Indian Penal Code read with Sec. 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, 'the Act') has been taken by learned Session Judge -cum -Special Judge, Cuttack as per the impugned order. This case was heard along with a batch of cases involving offence under Sec. 3 of the Act, but each of the cases is disposed of as per separate judgments. It be noted here that both the parties consented for disposal of the application under Sec. 482, Code of Criminal Procedure at the stage of admission.

(2.) It is stated in the application under Sec. 482, Code of Criminal Procedure that on the basis of a false allegation of Petitioner scolding, abusing and assaulting the informant, P.S. Case No. 29 of 1999 was registered in Mahanga Police Station for the aforesaid offences, and the investigation was conducted by an A.S.I. of Police and the O.I.C. submitted charge -sheet and thereafter, learned Special Judge received the charge -sheet and took cognizance of the offence. Though in the application under Sec. 482, Code of Criminal Procedure Petitioner has challenged the order of cognizance as illegal due to non -application of mind to the materials in the case diary by the Special Judge and for non -consideration by that Court about violation of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, but at the time of argument, referring to the case of Gangula Ashok and Anr. v/s. State of A.P., (2000) 18 OCR (SC) 364, he argued that learned Sessions Judge -cum -Special Judge, Cuttack should not have accepted and entertained the charge -sheet to pass order of cognizance in the absence of an order of commitment. In paragraph 16 of that judgment Apex Court has held that:

(3.) Learned Standing Counsel appearing for the opposite party, State of Orissa concedes that an investigation into an offence punishable under Sec. 3 of the Act cannot be undertaken by a Police Officer below the rank of Deputy Superintendent of Police. In the case of In Re: Sessions Judge -cum -Special Judge, Cuttack v/s. State of Orissa, (2002) 22 OCR 92, this Court has held that appointment of the Investigating Officer must be made in conformity with the provision in Sec. 9 of the Act and Rule 7 of the Rules. This Court in the other cases (out of the batch of cases) disposed of today, after taking note of the aforesaid decision of this Court and a catena of decisions from the Apex Court and various High Courts, has held that order of cognizance of the offence under Sec. 3 of the Act is not sustainable unless the investigation has been conducted by a competent Police Officer appointed in accordance with Sec. 9, read with Rule 7 of the Rules. That aspect shall be borne in mind by the cognizance taking Magistrate while considering the question of taking cognizance. However, this Court has observed (in the batch of cases) that if the investigating/prosecuting agency shall propose for investigation by a competent police officer relating to the offence under Sec. 3 of the Act, that aspect shall be considered by the cognizance taking Magistrate in accordance with law and further that if a charge sheet is submitted for the offence punishable under Indian Penal Code and Sec. 3 of the Act by a Police Officer who is not appointed in accordance with Sec. 9 of the Act read with Rule 7 of the Rules, then notwithstanding not taking cognizance of the offence under Sec. 3 of the Act the cognizance taking Magistrate on perusal of the case diary if satisfied about existence of prima facie case for the offences under the Indian Penal Code and about lawful investigation in that respect, then he may proceed with the Criminal Proceeding in accordance with law. The same view is adopted so far as the present case is concerned.