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Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4397-4400 OF 2017 (Arising from SLP(C) Nos. 27524-27 of 2011)

State of Bihar and others etc. ..Appellants

versus

Anil Kumar and others etc. ..Respondents

With

CIVIL APPEAL NO. 4401 OF 2017 (Arising from SLP(C) No.7317 of 2017)

J U D G M E N T

Jagdish Singh Khehar, CJI.

Leave granted in the special leave petitions.

2. The  question  that  arises  for  consideration,  emerges  from the

impugned order, dated 18/20.01.2011, passed by the High Court of Patna.

It pertains to the validity of the investigative process, under the provisions

of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (hereinafter referred to as the 'SCST Act').

3.   In order to demonstrate the seriousness of the issue, learned counsel

in Civil 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) …. …. ….

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(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 years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;

(iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby  cause  damage  to  any  property  belonging  to  a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not  be  less  than six  months  but  which may extend to seven years and with fine;

(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby  cause  destruction  of  any  building  which  is ordinarily used as a place of  worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such  person  is  a  member  of  a  Scheduled  Caste  or  a Scheduled  Tribe  or  such  property  belongs  to  such member,  shall  be punishable with imprisonment for life

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and with fine;

(va)  commits  any  offence  specified  in  the  Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such  property  belongs  to  such  member,  shall  be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;

(vi) knowingly or having reason to believe that an offence has  been  committed  under  this  Chapter,  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,  shall be punishable with the punishment provided for that offence; or

(vii)  being a public  servant,  commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.”

(emphasis is ours)

As a matter of comparison, our attention was also drawn to Section 201 of

the 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

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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 years, shall be punished with imprisonment of the description provided for the offence, for  a  term which may extend to  one-fourth  part  of  the longest term of the imprisonment provided for the offence, or with fine, or with both.”

(emphasis is ours)

It was submitted, that the consequences under the ‘SCST Act’ are far more

serious and drastic, than the consequences contemplated under the Indian

Penal  Code.   It  was  therefore,  the  vehement  contention  of  the  learned

counsel for the appellant – accused, that the provisions of the ‘SCST Act’,

insofar  as  the  investigative  process  is  concerned,  should  be  interpreted

strictly (- and not liberally).  And for the above purpose, it was submitted,

that  the  investigative  process  needed  to  be  placed  in  the  hands  of  the

highest  authority  possible,  in  consonance  with  the  rules  framed  by  the

Central Government.  Any determination to the contrary, it was pointed out,

would be contrary to the legislative intent, as well as, the serious and harsh

consequences, of any violation of the provisions of the ‘SCST Act’.  

4. Before  we endeavour to  deal  with the controversy in hand,  it

would be appropriate to extract hereunder, the conclusions drawn by the

High Court, in the impugned order.  The final determination of the High

Court was rendered in the following words:

“For the aforesaid reasons, we declare that the impugned Notification dated 3rd June, 2002 is not ultra vires the Act of  1989  or  the  Rules  made  thereunder.   It  is  further declared that the impugned notification dated 3rd June,

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2002 has become effective from the date of its publication in the Official  Gazette of the State of  Bihar i.e. on and from  9th August,  2008.   Investigation  and  consequent prosecution lodged by a police officer empowered under the impugned Notification, though lower in the rank than a Deputy Superintendent of Police, on or after 9th August, 2008 will be valid although the offence in question may have  been  committed  prior  to  9th August,  2008.   It  is further declared that the investigation made by a police officer  below  the  rank  of  a  Deputy  Superintendent  of Police after the date of the Rules, i.e., 31st March 1995 and prior to 9th August 2008 and consequent prosecution will  not  stand  validated  by  the  impugned  Notification dated 3rd June 2002 published on 9th August, 2008.”

5. In order to demonstrate the effect of the directions 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  is made, 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  indeed  framed  rules,  namely,  the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules,

1995 (hereinafter referred to as the 'SCST Rules') in exercise of its powers

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under  Section  23.   Rule  7  of  the  aforesaid  rules,  clearly  vested  the

investigative authority, for offences under the ‘SCST Act’, with an officer –

not below the rank of  a Deputy Superintendent of  Police.  Rule 7 of  the

`SCST Rules' is reproduced below:

“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 along with right lines within the shortest possible time.

(2) The investigating officer so appointed under sub-rule (1)  shall  complete  the  investigation  on  top  priority, submit the report to the Superintendent of Police, who in  turn  shall  immediately  forward  the  report  to  the Director – General of Police or Commissioner of Police of the State Government, and the officer-in-charge of the concerned police station shall file the charge-sheet in  the  Special  Court  or  the  Exclusive  Special  Court within a period of sixty days (the period is inclusive of investigation and filing of charge-sheet).

(3) (2A)  The  delay,  if  any,  in  investigation  or  filing  of charge-sheet  in  accordance  with  sub-rule  (2)  shall  be explained in writing by the investigating officer.

(3) The Secretary, Home Department and the Secretary, Scheduled  Castes  and  Scheduled  Tribes  Development Department (the name of the Department may vary from State to State) of the State Government or Union territory Administration,  Director  of  Prosecution,  the  officer in-charge  of  Prosecution  and  the  Director-General  of Police  or  the  Commissioner  of  Police  in-charge  of  the concerned State  or  Union Territory  shall  review by the end of every quarter the position of all investigations done by the investigating officer.”

(emphasis is ours)

A perusal of the Rule 7 reveals, that the investigating authority, for offences

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under the `SCST Act', was expressly vested with a police officer, not below

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  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).”

(emphasis is ours)

8. The  aforesaid  notification  was  issued  on  03.06.2002.   The

notification is available on the record of the appeals preferred by the State

Government, as Annexure P1. The notification (– dated 03.06.2002), was

published on 09.08.2008. It read as under:

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“No.  -  3/YA-80-26/2002-H(p)-6104 –  In  exercise  of  the powers conferred by Section 9(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of  Atrocities)  Act, 1989 (No. 33 of 1989) and having regards to the number of  cases  filed  under  this  Act,  the  State  Government authorises all the officers of the rank of Police Inspector, Sub-Inspector  of  Police  and  Assistant  Sub-Inspector  of Police to investigate the cases filed under this Act within the State of Bihar with effect from 31  st   March 1995, the date of coming into force of the Scheduled Castes and the Scheduled  Tribes  (Prevention  of  Atrocities)  Rules,  1995 made under this Act.”

(emphasis is ours)

A perusal  of  the notification extracted above reveals,  that Rule 7 of  the

‘SCST  Rules’  (framed  by  the  Central  Government),  which  required  all

investigations  in matters arising under the `SCST Act', to be carried out by

an  officer  not  below  the  rank  of  Deputy  Superintendent  of  Police,  was

virtually done away with. The notification in contrast, and as a matter of

obvious inconsistency, allowed the investigative process (– under the `SCST

Act')  to  be  carried  by  officers  three  ranks  below  the  rank  of  Deputy

Superintendent  of  Police,  namely,  through  officers/officials  holding  the

ranks of Inspector, Sub-Inspector and Assistant Sub-Inspector of Police.

9. In the appeal preferred by the appellant – accused, the first part

of the conclusions drawn by the High Court, in the impugned order, has

been  assailed.   It  was  the  contention  of  learned  counsel,  that  the

notification dated 03.06.2002, was  ultra vires the provisions of the `SCST

Act', and was also contrary to Rule 7 framed thereunder – and as such, was

also violative of the `SCST Rules'.

10. It  would be relevant to  record,  that  the striking down of  the

retrospective  effect,  given to  the notification dated 03.06.2002 –  “...with

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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 consideration to

the rule making authority,  and the seriousness attached to the offences

contemplated  under  the  provisions  of  the  `SCST  Act',  and  the  policy

depicted  through  the  legislative  intent  expressed  therein,  as  also,  the

serious  and  harsh  consequences  emerging  from  any  violation  of  the

provisions of the ‘SCST Act’, we are satisfied, that in the exercise of its rule

making  authority,  the  Central  Government  was  fully  competent  and

justified,  in requiring that the investigative process be conducted by an

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officer  not  below  the  rank  of  a  Deputy  Superintendent  of  Police.   The

Central Government had the jurisdiction of framing rules, and the Central

Government  had  exercised  its  jurisdiction  within  the  framework  of  the

authority vested in it.  We therefore hereby affirm the validity of Rule 7 of

the ‘SCST Rules’.

13. The  next  issue  that  arises  for  consideration  is,  whether  the

notification issued by the State of Bihar dated 03.06.2002, in exercise of

the power vested in the State Government, under Section 9 of the ‘SCST

Act’, can be considered to have been exercised in breach of, or in excess of

the power delegated to the State Government.  It was the contention of the

learned counsel for the appellant – accused, that Section 9 contemplates

the  possibility  of  extending  the  powers  of  arrest,  investigation  and

prosecution (–  of  persons,  alleged to have violated the provisions of  the

`SCST Act'), in addition to those already provided for under the Code of

Criminal Procedure.  Furthermore, as such, it was submitted, that it was

not  open to  the State  Government,  in exercise of  powers vested with it

(under  Section  9  of  the  `SCST  Act'),  to  vest  such  powers  of  arrest,

investigation and prosecution, with police officer(s) below the rank of the

police officer postulated and provided for under the `SCST Rules'.  It was

submitted,  that  under  Rule  7  of  the  above  rules,  the  powers  of  arrest,

investigation and prosecution are  mandated to  be exercised by a police

officer,  not  below the  rank of  Deputy  Superintendent  of  Police.   It  was

therefore submitted, that extension of the investigating power, to a police

officer/official below the expressly postulated rank, was not permissible.  In

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order to support his above assertion, learned counsel for the appellant –

accused, also drew our attention to sub-section (2),  of  Section 9, of  the

`SCST Act',  and on the basis  thereof  contended,  that  from a plain and

simple  interpretation  of  the  language  adopted  by  the  legislature,  in

sub-section  (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 powers.  All these police personnel, were authorised by Section 9

of the ‘SCST Act’, to be a part of the investigative process.  In addition,

under Section 9 aforementioned, a State Government was authorized, to

delegate the power of investigation (in addition to, the power of arrest, and

of  prosecution),  in  respect  of  offences under the `SCST Act',  “...  to  any

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officer of the State Government ...”, as the State Government may consider

“necessary”,  “...for  the  prevention of  and for  coping with  any offence...”

under the `SCST Act'.  The power vested with the State Government, under

Section 9 of the ‘SCST Act’, was therefore clearly expansive,   and   was

obviously   intended   to  enlarge the zone of  arrest,  investigation and

prosecution, to officers/officials in addition to those authorised to do so

under the Code of Criminal Procedure.  The power conferred on a State

Government under Section 9(1)(b), allowed the State Government to confer

the power “… on any officer of the State Government …”.  The power of

delegation was not limited to police personnel only, but extended to any

officer of the State Government, who may or may not belong to the Police

Department.  It is therefore not possible for us to accept the contention

advanced by the learned counsel  for  the appellant-accused,  founded on

sub-section (2) of Section 9 of the ‘SCST Act’.

15. It  is  also  necessary  to  take  note  of  the  legislative  intent

expressed in Section 9, in that, it extended to the State Government the

above  discretionary  authority.   The  State  Government  was  afforded the

discretion to vest with “… any officer of the State Government …” the power

of arrest, investigation and prosecution, by augmenting the zone provided

for  through  a  non  obstante clause.   Obviously  therefore,  the  right  to

delegate such powers of arrest, investigation and prosecution, vested with

the State Government,  was irrespective of  the provisions of  the Code of

Criminal Procedure.  Not only that, the above power could be exercised,

irrespective of the provisions of the parent ‘SCST Act’ itself.  It is therefore

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apparent,  that  Section  9,  was  aimed  at,  and  provided  for,  an  effective

mechanism for  arrest,  investigation  and prosecution,  in  addition  to  the

provisions  in  place.   In  case  the  State  Government  found the  same as

necessary and expedient, for an effective implementation of the 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, for offences under the ‘SCST Act’ to officers, not below

the rank of a Deputy Superintendent of Police. This determination at the

hands of  the Central  Government,  had an all  India effect,  and was not

State specific.   Therefore, when the provisions of the `SCST Rules' were

drawn,  it  is  necessary  to  visualise,  that  the  same  were  framed  by  the

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Central Government, for their implementation at the pan-India level.  The

Central Government, keeping in mind the harsh effect of any violation, of

the  provisions  of  the  `SCST  Act',  considered  it  expedient  to  require

investigation to be carried out, by an officer not below the rank of Deputy

Superintendent  of  Police.  This  exercise  of  authority,  by  the  Central

Government,  cannot  be  assailed  on  the  grounds  of  competence  or

legitimacy (as already concluded above).  We, therefore, find no infirmity in

the determination of the Central Government in vesting the investigative

power, with reference to offences committed under the ‘SCST Act’, with an

officer  not  below  the  rank  of  Deputy  Superintendent  of  Police.  It  is

therefore, that we express, and reiterate, our affirmation to the validity of

Rule 7 of the 'SCST Rules'.

17. The question however is, whether the State Government, could

in its discretion, in furtherance of the power vested with it under Section 9

of the ‘SCST Act’, relax the provision made by Rule 7 of the 'SCST Rules'.

18. It  is  imperative  to  emphasise,  that  as  against  the  national

character of the rule making power vested with the Central Government

under  Section  23  of  the  `SCST  Act',  the  delegated  power  contemplated

under Section 9 of the `SCST Act', is State specific. The power exercised by

a State, keeps in mind the circumstances prevailing in the concerned State.

The legitimacy and validity of the exercise of the instant delegated power

(vested  in  a  State  Government),  has  therefore  to  be  determined,  with

reference  to  the  peculiar  facts  and  circumstances  prevailing  in  an

individual State.  In exercise of the power vested under Section 9 of the

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‘SCST  Act’,  each  individual  State  Government,  was  vested  with  the

authority, to extend to officers other than the officers contemplated under

the  provisions  of  the  `SCST  Act',  powers  of  arrest,  investigation  and

prosecution. A reasonable and legitimate understanding of the scope of the

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  it  –  irrespective  of  the

provisions of the ‘SCST Act’, and also irrespective of the provisions of the

‘SCST Rules’, to delegate to “… any officer of the State Government …”, the

power of arrest, investigation and prosecution.  We are of the view, that the

non obstante clause, extended to the State Government, power to overlook

and provide differently, from the position contemplated under the ‘SCST

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Act’, as well as the ‘SCST Rules’.  The issue whether the State Government

was competent to relax the above rule, requiring that investigation be not

carried  out,  by  an  officer  below  the  rank  of  Deputy  Superintendent  of

Police, and thereby, extend the power of investigation to officers below the

rank of Deputy Superintendent of Police, has therefore to be answered in

the affirmative.    

19. Having concluded as above, we are satisfied to uphold, not only

Rule  7  of  the ‘SCST Rules’,  but  also the notification dated 03.06.2002,

issued by the State Government, in exercise of the power vested in it under

Section  9(1)(b)  of  the  ‘SCST  Act’.  Accordingly,  we  find  no  merit  in  the

challenge  raised  on  behalf  of  the  appellant-accused,  to  the  notification

dated 03.06.2002.

20.   We also find merit in the conclusion drawn by the High Court

to the effect that the operative date of implementation of the notification

dated  03.06.2002,  would  be  the  date  of  the  publication  of  the  above

notification (i.e., 09.08.2008). Firstly, because there is no challenge to the

above conclusion recorded by the High Court.  And secondly, the instant

exercise of power, cannot have retrospective effect, because Section 23 of

the `SCST Act', does not vest in the Central Government with the authority

to exercise its rule framing authority, with retrospective effect.

21.  With the conclusions recorded in the foregoing paragraphs, we

have dealt  with  the  submissions advanced at  the  hands  of  the learned

counsel for the appellant – accused.

22. We  shall  now  deal  with  the  challenge  raised  by  the  learned

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senior  counsel,  representing  the  State  of  Bihar.   As  already  noticed

hereinabove, the second conclusion drawn by the High Court was, that of

investigation carried  out,  by  police  officers  below the  rank of  a  Deputy

Superintendent of Police, after 31.03.1995 and prior to 09.08.2008, would

stand vitiated.  In order to assail the aforesaid conclusion, learned counsel

first drew our attention to Section 465 of the Code of Criminal Procedure.

The same is extracted hereunder:

“465. Finding or sentence when reversible by reason of error,  omission  or  irregularity.  –  (1)  Subject  to  the provisions hereinbefore 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  of

negating the prosecution itself, unless it is further shown, that the same

had  occasioned  a  failure  of  justice.   In  order  to  support  his  above

contention,  learned counsel  placed  reliance  on H.N.  Rishbud and Inder

Singh vs. The State of Delhi, (1955) 1 SCR 1150.  The questions that arose

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for consideration in the above judgment, were expressed in the following

manner:

“On the arguments urged before us two points arise for consideration.  (1)  Is  the  provision  of  the  Prevention  of Corruption Act, 1947, enacting that the investigation into the offences specified therein shall  not be conducted by any  police  officer  of  a  rank  lower  than  a  Deputy Superintendent of Police without the specific order of a Magistrate, directory or mandatory.    (2)  Is  the  trial  following  upon  an  investigation  in contravention of this provision illegal.”

In order to invite the Court's attention to the conclusion(s) drawn in the

above judgment (rendered by a three Judge Division Bench), our pointed

attention  was  drawn  to  the  following  position,  recorded  in  the  above

judgment:

“The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are  not  concerned  with  the  effect  of  the  breach  of  a mandatory  provision  regulating  the  competence  or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to  whether  it  constitutes  an  illegality  vitiating  the proceedings  or  a  mere  irregularity  arises.  A  defect  or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is  provided in section 190 of  the Code  of  Criminal  Procedure  as  the  material  on  which cognizance is taken. But it cannot be maintained that a valid  and  legal  police  report  is  the  foundation  of  the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections  under  the  heading  "Conditions  requisite  for initiation of proceedings. The language of this section is

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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  complaint,  summons,  warrant,  charge, proclamation,  order,  judgment  or  other  proceedings before  or  during  trial  or  in  any  enquiry  or  other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice".

xxx xxx xxx xxx  It  does  not  follow,  however,  that  the  invalidity  of  the investigation  is  to  be  completely  ignored  by  the  Court during  trial.  When  the  breach  of  such  a  mandatory provision is brought to the knowledge of the Court at a sufficiently  early  stage,  the  Court,  while  not  declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such  reinvestigation  as  the  circumstances  of  an individual  case  may  call  for.  Such  a  course  is  not altogether outside the contemplation of the scheme   o  f the code  as  appears  from  section  202  under  which  a Magistrate taking cognizance on a complaint  can order investigation by the police.  Nor can it  be said that the adoption of  such a  course  is  outside  the  scope  of  the inherent powers of the Special Judge, who for purposes of procedure  at  the  trial  is  virtually  in  the  position  of  a Magistrate trying a warrant case.”

(emphasis supplied)

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It  was  also  the  pointed  contention  of  learned  counsel,  that  the  legal

position,  as  has  been  expressed  in  the  above  judgment,  has  remained

unaltered.  In this behalf, our attention was drawn to a recent judgment of

this Court in Union of India vs. T. Nathamuni (2014) 16 SCC 285, wherein

the factual issue arose for consideration:

“13.  The  question  raised  by  the  respondent  is  well answered by this Court in a number of decisions rendered in a different perspective.  The matter of investigation by an  officer  not  authorized  by  law  has  been  held  to  be irregular.  Indisputably,  by  the  order  of  the  Magistrate investigation  was  conducted  by  the  Sub-Inspector,  CBI who,  after  completion  of  investigation,  submitted  the charge-sheet. It was only during the trial, objection was raised by the respondent that  the order  passed by the Magistrate  permitting  the  Sub-  Inspector,  CBI  to investigate  is  without  jurisdiction.  Consequently,  the investigation conducted by the officer is vitiated in law. Curiously  enough  the  respondent  has  not  made  out  a case  that  by  reason  of  investigation  conducted  by  the Sub-Inspector  a  serious  prejudice  and  miscarriage  of justice has been caused. It is well 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

vs. State of Mysore (1970) 3 SCC 513; Muni Lal vs. Delhi Admn. (1971) 2

SCC 48; State of Haryana vs. Bhajan Lal 1992 Supp (1) SCC 335 and A.C.

Sharma vs.  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

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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, is in complete

consonance and conformity with the postulation contained in Section 465

of  the Code of  Criminal  Procedure.  This being the position,  we have no

hesitation in holding, that the second determination rendered by the High

Court, to the extent that the investigation carried out by a police officer

below the rank of a Deputy Superintendent of Police, after 31.03.1995 and

prior to the issuance of the notification dated 03.06.2002 (on 09.08.2008),

would stand vitiated, has necessarily to be set aside.  In our view, the above

finding could have been returned only if, the concerned Court expressed its

satisfaction,  that  the  investigation  carried  out,  by  a  subordinate  police

officer/official, who had no authority to investigate the matter, had caused

prejudice to the accused, leading to miscarriage of justice. Since no such

finding has been recorded, and since it has also not been established before

this Court, that the accused had suffered such prejudice, it is not possible

for us, to sustain the above conclusion, of the High Court.  The same is

accordingly hereby set aside.

24. Having recorded our conclusions with reference to the second

proposition, recorded in the preceding paragraph, it is necessary for us to

take  the  issue  canvassed  on  behalf  of  the  State  Government.   In  that,

insofar as the facts and circumstances of the present cases are concerned,

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such a demonstration at the hands of the accused, will be inconsequential,

inasmuch  as,  our  having  upheld  the  notification  issued  by  the  State

Government,  under  Section  9  of  the  ‘SCST  Act’,  a  valid  and  legitimate

investigation can “now” be carried out, even by a police officer below the

rank of a Deputy Superintendent of Police.  And as such, even in cases

where  a  fresh  investigation  is  ordered,  at  the  present  juncture,  the

officer/official (Inspector, Sub-Inspector, Assistant Sub-Inspector of Police)

who had carried out the original investigation, would have to be considered

to be possessed of the investigative authority.  As now, the investigating

authorities, authorized under the ‘SCST Act’, would include those as have

been notified by the State Government in exercise of the power vested in it

under Section 9 of the ‘SCST Act’.   As such, no purpose would be served

for any party to agitate the instant issue, seeking re-investigation, in the

facts and circumstances of the matters in hand.

25. Accordingly, the appeal filed by the appellant-accused is hereby

dismissed, and the appeals filed by the State of Bihar are hereby allowed, to

the extent indicated hereinabove.  

….....................................CJI. [Jagdish Singh Khehar]

…........................................J. [Dr. D.Y. Chandrachud]

New Delhi; ….......................................J. March 23, 2017. [Sanjay Kishan Kaul]  

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ITEM NO.10                 COURT NO.1               SECTION XVI

              S U P R E M E  C O U R T  O F  I N D I A

                      RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s).  27524-27527/2011

(Arising out of impugned final judgment and order dated  18/01/2011 in CWJC  No.  15490/2008  20/01/2011  in  CWJC  No.  15490/2008 18/01/2011  in  CWJC  No.  16407/2007  20/01/2011  in  CWJC  No. 16407/2007 18/01/2011 in CWJC No. 18736/2008 20/01/2011 in CWJC No.  18736/2008  18/01/2011  in  CWJC No.  7489/2006  20/01/2011  in CWJC No. 7489/2006 passed by the High Court Of Patna)

STATE OF BIHAR & ORS. ETC.                         Petitioner(s)

                               VERSUS

ANIL KUMAR & ORS. ETC.                             Respondent(s) (with  interim relief and office report)(for final disposal) WITH SLP(C) No. 7317/2017 (With appln(s) for exemption from filing c/c of the impugned Judgment and Office Report)

Date : 23/03/2017 These petitions were called on for hearing today.

CORAM :  

        HON'BLE THE CHIEF JUSTICE          HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

For Petitioner(s) Mr. Nagendra Rai, Sr. Adv. In SLP 27524-27/11 Mr. Chandan Kumar, Adv. & for respondent in for Mr. Gopal Singh,AOR connected case                       For Petitioner(s) Mr. Santosh Mishra,Adv. In SLP 7317/2017 Mr. R.R. Dubey, Adv.

For Respondent(s) Mr. Jasbir Bidhuri, Adv.                     for Ms. Madhu Sikri,AOR

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Mr. Alok Kumar,AOR                                                  UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.

The appeal filed by the appellant-accused is hereby dismissed, and the appeals filed by the State of Bihar are hereby allowed, in terms of the reportable signed judgment.

 (Renuka Sadana)            (Parveen Kumar) Assistant Registrar                                    AR-cum-PS

[Reportable signed judgment is placed on the file]

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