Supreme Court of India
STATE OF BIHAR AND OTHERS ETC.versusANIL KUMAR AND OTHERS ETC.
- Citation
- 2017 INSC 259
- Decided
- 23 March 2017
- Disposal
- Disposed off
- Bench
- S KHEHAR
Holding
Section 9 of the SCST Act empowers the State to delegate investigative powers to any officer of the State Government, and this power cannot be negated by Rule 7; therefore both the Rule and the State’s notification are valid.
Summary
The Supreme Court examined whether the Central Government's Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 – which mandates that investigations under the SCST Act be conducted by a police officer not below the rank of Deputy Superintendent of Police – is valid, and whether the State of Bihar could, under Section 9 of the SCST Act, issue a notification allowing officers of lower rank (Inspector, Sub‑Inspector, Assistant Sub‑Inspector) to investigate. The Court held that Section 9 confers a broad power on the State to delegate arrest, investigation and prosecution to any officer of the State Government, and that this power, reinforced by a non‑obstante clause, cannot be overridden by a rule. Consequently, both Rule 7 and the State’s notification were upheld, and the High Court’s finding that investigations carried out by lower‑rank officers before the notification were vitiated was set aside. The appeals filed by the State of Bihar were allowed and the accused’s appeal dismissed.
Issues considered
- The validity of Rule 7 of the SCST Rules, 1995 requiring investigation by officers not below the rank of DSP.
- Whether the State Government’s notification under Section 9 of the SCST Act, permitting investigation by Inspectors, Sub‑Inspectors and Assistant Sub‑Inspectors, is ultra vires the Act and the Rules.
- Whether a provision made under a rule can negate a right conferred by the parent legislation.
- Whether investigations conducted by officers below the rank of DSP prior to the notification are vitiated.
- Whether an irregular investigation vitiates the trial unless a miscarriage of justice is shown.
Legislation cited
Subjects
SCST ActRule making powerDelegation of investigationNon-obstante clauseValidity of statutory rulesInvestigative authorityCriminal procedureAdministrative law
Judgment
[2017] 6 S.C.R. 711
STATE OF BIHAR AND OTHERS ETC. A
v.
ANIL KUMAR AND OTHERS ETC.
(Civil Appeal Nos. 4397-4400of2017)
MARCH 23, 2017 B
[JAGDISH SINGH KHEHAR, CJI,
DR. D. Y. CHANDRACHUD AND
SANJAY KISHAN KAUL, JJ.)
. Scheduled Castes and Scheduled Tribes (Prevention of c
Atrocities) Act, 1989 - ss.9, 23 - Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Rules, 1995 - r. 7 - Central
Government in exercise of rule making power vested u/s. 23, SCST
A Ct framed 1995 Rules wherein r. 7 vested the investigative authority.
for offences committed under SCST Act with an officer not below
the rank of a DSP - However, appellant-State in exercise of power D
vested in it u/s.9, SCST Act issued a notification allowing the
investigative process to be ca_rried by officers three ranks below
the rank of DSP, namely, through officers/officials holding the ranks
of Inspector. Sub-Inspector and Assistant Sub-Inspector of Police
~ Notification challenged contending that it was ultra vires the E
provisions of SCST Act as also contrary to r. 7 of 1995 Rules - High
Court upheld the validity of the impugned notification - On appeal,
held: S.9 of SCST Act extended the power of arrest, investigation
and prosecution, to all officers as would be entitled to carry out the
said responsibilities, under CrPC - In addition, it further authorized
the State Government to delegate the power of i'nvestigation (in F
addition to, the power of a~rest, and of prosecution) in respect of
offences under the SCST Act, " ... to any officer of the State
Government ... ", as the State Government may consider "necessary"
- Thus, the power vested with the State Government u/s. 9 was clearly
expansive and was intended to enlarge the zone of arrest, G
investigation and prosecution, to officers/officials in addition to
those authorised to do so under CrPC - Therefore, the power of
delegation was not limited to police personnel only, but extended to
any officer of the State Government, w!io may or may not belong to
the Police Department ...The said power was given to the State
H
• . 711
712 SUPREME COURT REPORTS [2017) 6 S.C.R.
A Government through a non-obstante clause and could be exercised
irrespective of the provisions of CrPC and even the parent SCST
Act itself - Impugned notification upheld - Code of Criminal
Procedure, 1973.
Scheduled Castes and Scheduled Tribes Rules, 1995 - r.7 -
B Validity of - Held: Jn view of serious and harsh consequences
emerging from any violation of the provisions of SCST Act, the
Central Government in exercise of its rule making authority was
fully competent and justified, in requiring that the investigative
process be conducted by an officer not below the rank of a DSP -
The power exercised by Central Government was within the
·C framework of authority vested in it - Thus, exercise of such
authority, by Central Government, cannot be assailed on the grounds
of competence or legitimacy - r. 7 held to be valid.
Administrative Law - 1995 Rules framed by Central
Government uls.23 of the parent Act wherein r. 7 vested investigative
D authority for offences committed under the said Act - State
Government exercising power uls.9 of the parent Act issued
notification relaxing the said provision made by r. 7 of 1995 Rules -
Permissibility of - Held: A provision made under a rule, i.e. r. 7
cannot negate a right extended through the parent legislation i.e.
E by way of s.9 - The power vested with the State Government, through
a non obstante clause uls.9, cannot be neutralized by any rule framed
uls.23, SCST Act - Thus, the non obstante allowed the State
Government to exercise the power conferred on it irrespective of
the provisions of the parent Act or rules framed thereunder.
F Disposing of the appeals, the Court
HELD: 1. In view of the rule making authority, and the
seriousness attached to the offences contemplated under the
provisions of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 ('SCST Act') and the policy
G depicted through the legislative intent expressed therein, as also,
the harsh consequences emerging from any violation of the
provisions of the 'SCST Act', the Central Government was fully
competent and justified in exercise of its rule making authority,
in requiring that the investigative process be conducted by an
officer not below the rank of a Deputy Superintendent of Police.
H
STATE OF BIHARAND OTHERS ETC. v. ANIL KUMAR AND 713
OTHERS ETC.
The Central Government had the jurisdiction of framing rules, A
and the Central Government had exercised its jurisdiction within
the framework of the authority vested in it. Therefore, the validity
of Rule 7 of the Scheduled Castes Scheduled Tribes Rules, 1995
('SCST Rules') is upheld. [Para 12) [723-D-E]
2.1 In view of the scheme which was provided for by the B
legislature, in dealing with offences under the 'SCST Act', 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 C
of Criminal Procedure. And as such, 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 D
addition, under Section 9, 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 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 E
power vested with the State Government, under Section 9 of the
'SCST Act', was therefore clearly expansive, and was 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 F
Government under Section 9(1)(b), allowed the State Government
to confer the power " ... on any officer of the State Government
.•• ". Thus, 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. [Para 14] (724-D-H; 725-A-B] G
2.2 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
H
714 SUPREME COURT REPORTS [2017] 6 S.C.R.
A 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
B 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 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
C 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
D 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
E " ••• any officer of the State Government .•• ", for the fulfillment of
the purposes of the 'SCST Act'. [Para 15) [725-C-G)
3. 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
F Rules'? The rightful approach to this issue would emerge from
the query, whether a provision made under a rule, can negate a
right extended through the parent legislation? The answer is in
the negative. Section 9(l)(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,
G 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
H
STATE OF BIHAR AND OTHERS ETC. v. ANIL KUMAR AND 715
OTHERS ETC.
delegate to " ... any officer of the State Government ... ", the A
power of arrest, investigation and prosecution. Thus, the non
obstante clause, extended to the State Government, the power to
overlook and provide differently, from the position contemplated
under the 'SCST Act', as well as the 'SCST Rules'. The issue
whether the State Government was competent to relax the above B
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, is therefore answered in the
affirmative. Thus, the notification issued by the State Government
in exercise of the power vested in it under Section 9(1)(b) of the C
'SCST Act' is upheld. [Paras 17, 18 and 19) [726-D; 727-A-F)
H.N. Rishbud and lnder Singh v. The State of Delhi
[1955) 1 SCR 1150; Union of India v. T. Nathamuni
(2014) 16 sec 285 : [2014) 12 SCR 297; M.C.
Sulkunte v. State of Mysore (1970) 3 SCC 513; Muni D
Lal v. Delhi Admn. (1971) 2 SCC 48 : [1971) Suppl.
SCR 276; State of Haryana v. Bhajan Lal 1992 Suppl.
(1) SCC 335 : [1990) 3 Suppl. SCR 259; A.C. Sharma
v. Delhi Admn. (1973) 1 SCC 726 : [1973) 3 SCR 477
- referred to.
E
Case Law Reference
[1955] 1 SCR 1150 referred to Para 22
[2014) 12 SCR 297 referred to Para 22
(1970) 3 sec 513 referred to Para 22 F
[1971] Suppl. SCR 276 referred to Para 22
[1990] 3 Suppl. SCR 259 referred to Para 22
[1973) 3 SCR 477 referred to Para 22
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4397- G
4400 of2017.
From the Judgment and Order dated 18. 01.2011 and 20. 01.2011
ofthe High Court of Patna in CWJC Nos. 15490/2008, 7489/2006, 16407I
2007 and 18736/2008
H
716 SUPREME COURT REPORTS [2017] 6 S.C.R.
A WITH
C.A. No. 4401 of2017.
Nagendra Rai, Sr. Adv.,' Chandan Kumar (for Gopal Singh),
· Santosh Mishra, R. R. Dubey, Jasbir Bidhuri (for Ms. Madhu Sikri),
Alok Kumar, Advs. for the appearing parties.
B
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, CJI 1. Leave granted in the
special leave petitions.
2. The question that arises for consideration, emerges from the
C · 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
D coqnsel in Civil Appeal arising from SLP(C) No. 7317of2017 (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)
E
(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
F 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
G 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
H
STATE OF BIHAR AND OTHERS ETC. v. ANIL KUMAR AND 717
OTHERS ETC. [JAGDISH SINGH KHEHAR, CJI]
a term of seven years or upwards, shall be punishable with A
imprisonment for a termwhich 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 kno\Ving it to be likely that he will thereby cause damage
to any property belonging to a member of a Scheduled Caste or a B
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 mischiefby fire or any explosive substance intending
to cause or knowing it to be likely that he will thereby cause c
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) D
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
and with fine;
E
(va) commits any offence specified in the Schedule, against a
person or property, knowing that such person is a member ofa
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; F
(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 G
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
H
718 SUPREME COURT REPORTS (2017] 6 S.C.R.
A 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:
B
"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
c 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
D 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 punished with imprisonment of
either description for a term which may extend to three years..
E and shall also be liable to fine;
if punishable with less than ten years' imprisonment-and ifthe
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-
F 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
G 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
.H hands of the highest authority possible, in consonance with the rules
STATE OF BIHAR AND OTHERS ETC. v. ANIL KUMAR AND 719
.
OTHERS ETC. [JAGDISH SINGH KHEHAR, CJI)
framed by the Central Government. Any determination to the contrary, A
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 B
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 c
impugned notification dated 3rd June, 2002 has become effective .
from the date of its publication in the Official Gazette of the State
of Bihar i.e. on and from 9•h 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 9'h August, 2008 will D
be valid although the offence in question may have been committed
prior to 9'h 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., 31" March
1995 and prior to 9'h August 2008 and consequent prosecution E
will not stand validated by the impugned Notification dated 3rd
June 2002 published on 9•h 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, F
under Section 23 of the 'SCST Act'. The above provisiqn is reproduced
hereunder:
"23. Power to make rules.-(!) The Central Government may. by
notification in the Official Gazette. make rules for canying out
the pumoses of this Act. G
(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
H
720 SUPREME COURT REPORTS [2017] 6 S.C.R.
A 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 ofanything previously done under that rule."
B
(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 under Section 23. Rule 7 of the aforesaid rules, clearly vested
c the investigative authority, for offences under the 'SCST Act', with an
officer-not below the rank of a Deputy Superintendent of Police. Rule
7 ofthe 'SCST Rules' is reproduced below:
"7. Investigating Officer. - (I) An offence committed under the
Act shall be investigated by a police officer not below the rank of
D
a Deputy Superintendent of Police. The investigating officer shall
be appointed by the State Government/ Direc~or 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
E shortest possible time.
(2)The investigating officer so appointed under sub-rule (I) shall
complete the investigation on top priority, submit the report to
the Superintendent of Police, who in tum shall immediately
forward the report to the Director - General of Police or
F 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).
G (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
H Castes and Scheduled Tribes Development Department (the name
STATE OF BIHAR AND OTHERS ETC. v. ANIL KUMAR AND 721
OTHERS ETC. [JAGDISH SINGH KHEHAR, CJI]
of the Department may vary from State to State) of the State A
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 B
investigating officer."
(emphasis is ours)
A perusal of the Rule 7 reveals, that the investigating authority,
for offences under the 'SCST Act', was expressly vested with a police
officer, not below the rank of a Deputy Superintendent of Police.
c
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 2 aforesaid, is reproduced
below:
D
"9. Conferment of powers. - (l) Notwithstanding anything
contained in the Code or in any other provision of this Aci. 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 E
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 F
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 G
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 (l)."
(emphasis is ours)
H
722 SUPREME COURT REPORTS [2017] 6 S.C.R.
A 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, asAnnexure PI. The notification (-dated 03.06.2002),
was published on 09.08.2008. It read as under:
"No. - 3NA-80-26/2002-H(p)-6104- In exercise of the powers
B 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
c within the State of Bihar with effect from 31 fil 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)
D
A perusal of the notification extracted above reveals, that Rule 7
of the 'SCSI Rules' (framed by the Central Government), which required
all investigations in matters arising under the 'SCSI Act', to be carried
outby an officer not belt>w the rank of Deputy Superintendent of Police,
was virtually done away with. The notification in contrast, and as a
E matter of obvious inconsistency, allowed the investigative process (-
. under the 'SCSI 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.
F
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 dated03.06.2002, was ultra vires the provisions of the 'SCSI
Act', and was also contrary to Rule 7 framed thereunder - and as such,
G was also violative of the 'SCSI 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
effect from 31" March 1995 ... ", by the High Court, was not expressly
assailed, by either of the sides.
H
STATE OF BIHAR AND OTHERS ETC. v. ANIL KUMAR AND 723
OTHERS ETC. [JAGDISH SINGH KHEHAR, CJ!]
11. The second part of the conclusions drawn by the High Court A
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 B
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 C
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', D
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 officer not below the rank of a Deputy Superintendent of Police. E
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 consideratio.n is, whether the .F
notification issued by the State ofBihar 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
ofthe power delegated to the State Government. It was .the contention
of the learned counsel for the appellant - accused, that Section 9 G
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
H
724 SUPREME COURT REPORTS [2017] 6 S.C.R.
A 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
B 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 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
C 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.
D 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,
E 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 rarik(s) of Inspector, Sub-Inspector and Assistant Sub-Inspector,
F 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
'SCSTAct', " ... to any officer of the State Government ... ", as the State
G 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
H
STATE OF BIBAR AND OTHERS ETC. v. ANIL KUMAR AND 725
OTHERS ETC. [JAGDISH SINGH KHEHAR, CJI]
to those authorised to do so unaer the Code of Criminal Procedure. The A
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 fo
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 B
not possible for us to accept the contention advanc'ed 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 C
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 ·D
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 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 E
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 F
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'. · G
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
H
726 SUPREME COURT REPORTS [2017] 6 S.C.R.
A 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
B
were framed by the Central Government, for their implementation at the
pan-India level. The Central Government, keeping in mind the harsh
effect ofany 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
C 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
D 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'. • .
E
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
F 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
'SCST Act', each individual State Government, was vested with the
G 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
H
STATE OF BIHAR AND OTHERS ETC. v. ANIL KUMAR AND 727
OTHERS ETC. [JAGDISH SINGH KHEHAR, CJI]
Central Government provided for investigation, at the hands of an officer A
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 B
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 C
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 D .
contemplated under the 'SCST 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. E
19. Having concluded as above, we are satisfied to uphold, not
only Rule 7 ofthe '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(l)(b) of the 'SCST Act'. Accordingly, we find no merit
in the challenge raised on behalf of the appellant-accused, to the F
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 G
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.
H
728 SUPREME COURT REPORTS [2017] 6 S.C.R.
A 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
senior counsel, representing the State of Bihar. As already noticed
B 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:
c
"465. Finding or sentence when reversible by reason of error,
omission or irregularity. -(I) 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
D 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
E 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 ofiustice.
the Court shall have regard to the fact whether the objection
F 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
G the effect of negating the prosecution itself, unless it is further shown,
that the same had occasioned a failure ofjustice. In order to support his
above contention, learned counsel placed reliance on H.N. Rishbud and
Inder Singh vs. The State of Delhi, (1955) I SCR 1150. The questions
that arose for consideration in the above judgment, were expressed in
the following manner:
H
STATE OF BIHAR AND OTHERS ETC. v. ANIL KUMAR AND 729
OTHERS ETC. [JAGDISH SINGH KHEHAR, CJI]
"On the arguments urged before us two points arise for A
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.
B
(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 c
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 D
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 E
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 F
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 ofproceedings.
The language of this section is in marked contrast with that of the G
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 H
730 SUPREME COURT REPORTS [2017] 6 S.C.R.
A 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
B
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
c 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".
D 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
E 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 of the code as appears from section 202 under
F 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)
G
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 oflndia vs. T. Nathamuni (2014) 16 SCC 285,
wherein the factual issue arose for consideration:
H
STATE OF BIHAR AND OTHERS ETC. v. ANIL KUMAR AND 731
OTHERS ETC. [JAGDISH SINGH KHEHAR, CH]
"13. The question raised by the respondent is well answered by A
this Court in a number of decisions rendered in a different
perspective. The matter ofinvestigation 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- B
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 C
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. D
Sulkunte vs. State of Mysore (1970) 3 SCC 513; Muni Lal vs. Delhi
Admn. (1971) 2 SCC 48; State ofHaryana 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 E
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 F
is set aside. The concerned Court shall now act with. utmost
expedition."
(emphasis supplied)
23. Having given a thoughtful consideration, to the contention
advanced on behalf of the appellant- State ofBihar, we are of the view, G
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 H
732 SUPREME COURT REPORTS [2017] 6 S.C.R.
A 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
/
B the matter, had caused prejudice to the accused, leading to miscarriage
ofjustice. 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
c 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,
such a demonstration at the hands of the accused, will be inconsequential,
inasmuch as, our having upheld the notification issued by the State
D 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
E 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 he served for any party to agitate the instant issue, seeking
·p 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 ofBihar are hereby allowed,
to the extent indicated hereinabove.
G
Divya Pandey Appeals disposed of.
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