RAM DENI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE four petitions tiled under Article 226 of the Constitution raise common challenge to the constitutional validity of the Government Notification dated 3rd June 2002 published in the Official Gazette of the State of Bihar on 9th August 2008.

(2.) THE petitioners in C.W.J.C. No. 7489 of 2006 are the wife and the brother of the deceased Sharma Choudhary, a class IV employee of the respondent no.6, Canara Bank. According to the writ petitioners the said Sharma Choudhary died on account of the atrocities meted to him being a Scheduled Caste person. THE petitioners have, therefore, prayed that the police be directed to register the offence under Section 3(2)(v) read with Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act of 1989') read with Section 302 of the Indian Penal Code; that the police be directed that the investigation for the offence be made by a police officer of the rank of the Deputy Superintendent of Police.

(3.) THE challenge to the Notification is mainly on the ground that the impugned Notification is violative of Section 9 of the Act of 1989 and Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (herein after referred to as 'the Rules'). Another limb of the challenge is that the impugned Notification is ultra vires in so far as it is made retrospective with effect from 31st March 1995. THE Notification is intended to validate the invalid actions of investigation by an officer below the rank of Deputy Superintendent of Police. It is also submitted that the impugned Notification extends beyond the power conferred upon the State Government to empower any officer of the State Government to exercise the powers of a police officer of arrest, investigation and prosecution of the persons before a special court. THE relevant Section 9 of the Act of 1989 and Rule 7 of the Rules read as under:- "Section 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 thereunder. (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). "Rule 7. Investigating Officer-(1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. THE investigating officer shall be appointed by the State Government/Director General of Police/ Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it alongwith right lines within the shortest possible time. (2) THE investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority basis within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government. (3) THE Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer in-charge of Prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the investigating officer.