Investigation by unauthorised officer

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 ?