In Crl Appeal no 943/2003 State of MP v. Chunni lal decided on 15th April 2009 FIR was lodged under s. 376, IPC and s. 3, Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. since Post of Dy.SP was vacent (who was authorised to investigate under SC ST Act), the ASP authorised a SI to investigate . In revision, the High court quashed the charges . The supreme court passed following order: “ The High Court was therefore not justified in quashing the entire proceedings. The order shall be restricted to the offence under Section 3 of the Act and not in respect of offences punishable under the IPC. The appeal is allowed to the aforesaid extent.”
Section 9 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 read as follows:
"Section 9-Conferment of powers.-- (1) Notwithstanding anything contained in the code or in any other provision of this
Act, the State Government may, if it considers it necessary or expedient so to so,-
(a) for the prevention of coping with any offence under this act,
or
(b) for any case of class of 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 particulars, the powers of arrest, investigation and prosecution of persons before any Special Court.
(2) All officers of police and all other officers of Government shall assist the officer referred to in Sub-section (1) in the
execution of the provisions of this Act or any rule, scheme or order made thereunder.
(3) The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under Sub-section (1).
Rule 7-Investigating Officer,-- (1) An offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director-General of Police Superintendent of Police after taking into account his post 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 within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government.
(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the Officer-in-
charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigation done by the Investigating Officer."
The supreme court held that “By virtue of its enabling power it is the duty and responsibility of the State Government to issue notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of
Police for different areas in the police districts. Rule 7 of the Rules provided rank of investigation officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer. The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read lead to an irresistible conclusion that the investigation to an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid. But when the offence complained are both under the IPC and any of the offence enumerated in Section 3 of the Act the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non investigation of the offence under Section 3 of the Act by a competent police officer. In such a situation the proceedings shall proceed in appropriate Court for the offences punishable under the IPC notwithstanding investigation and the charge sheet being not liable to be accepted only in respect of offence under Section 3 of the Act for taking cognizance of that offence.”
Now, the question arises, shall there be a fresh investigation and separate prosecution under Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 only, subjecting the accused to double prosecution ? if not, is it permissible to take no action on that part of FIR/offence ?
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