Page 1 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)…. …. ….

Page 2 (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

2

Page 3 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

3

Page 4 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 3

rd

June, 2002 is not ultra vires the Act

of 1989 or the Rules made thereunder. It is further

declared that the impugned notification dated 3

rd

June,

4

Page 5 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

th

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

th

August,

2008 will be valid although the offence in question may

have been committed prior to 9

th

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

st

March 1995

and prior to 9

th

August 2008 and consequent prosecution

will not stand validated by the impugned Notification

dated 3

rd

June 2002 published on 9

th

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

5

Page 6 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

6

Page 7 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:

7

Page 8 “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

8

Page 9 effect from 31

st

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

9

Page 10 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

1

Page 11 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

1

Page 12 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

1

Page 13 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

1

Page 14 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

1

Page 15 ‘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

1

Page 16 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

1

Page 17 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

1

Page 18 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

1

Page 19 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)

1

Page 20 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

2

Page 21 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,

2

Page 22 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]

2

Page 23 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 infor 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

2

Page 24 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]

2