- (1.) HEARD learned counsel for the petitioner and learned counsel for State as also learned counsel for the accused opposite parties.
(2.) THE petitioner is aggrieved by order dated 1.9.2009 by the learned 1st Additional Sessions Judge -cum -special Judge. S.C. and S.T. (Prevention of Atrocities) Act, Garhwa, in S.C. and S.T. Case No.2 of 2009, arising out of Complaint case No. 742 of 2006. whereby the application filed by the accused opposite parties under Section 227 of the Cr PC. was allowed by the Court below holding that the procedure prescribed under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules (herein after referred to as the said Rules) was not followed in the case and other offences being triable by a Magistrate the learned special Judge accordingly, remitted the case back to the court of sub -divisional, Judicial Magistrate Gahrwa, for trial in accordance with law. The petitioner had filed the Complaint Case No. 742 of 2006 in the Court of Chief Judicial Magistrate, Garhwa, alleging the commission of the offences under Section 452, 323, 385, 420, 387, 384 and 406 of the Indian Penal Code and Sections 3, 4, 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (hereinafter referred to as the said Act). It appears that case was transferred to the Court of sub -divisional Magistrate. Garhwa, who entered into an enquiry under Section 202 of the Cr P.C. found the prima facie offence under the said Act, and committed the case to the Court of Special, Judge for trial in accordance with law. The special, Judge found that the previsions of Rule 7 of the said Rules were not followed as the matter was not investigated by any police officer not below the rank of Deputy Superintendent of Police and accordingly, the matter was returned back to the Court below by the Special Judge. It further appears that thereafter the learned Sub -divisional, Judicial Magistrate called for an enquiry report from the Deputy Superintendent of Police, Garhwa, who in turn submitted a report finding the case to be true and thereafter, the matter was again committed to the Court of Special Judge by the Sub -Divisional, Judicial Magistrate. The learned Special Judge again found that the case was instituted on the basis of the complaint and the procedure prescribed under Rule 7 of the said Rules were not followed, as the case was not investigated in accordance with the said Rules and accordingly, found that the trial for the offences under the said Act could not be continued against the accused persons. Other offences being triable by the Magistrate, the learned Addl. Sessions Judge -cum -Special Judge, Garhwa, remanded the matter back to the Court of Sub -Divisional, Judicial Magistrate, Garhwa, for trial in accordance with law.
(3.) LEARNED counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch as the procedure prescribed under Rule 7 of the said Rules had been complied with, as upon remand of the case to the Court of SDJM, the Court called for an enquiry report from the Deputy Superintendent of Police, Garhwa, who visited the spot and record the statements of the witnesses and submitted his enquiry report finding the case to be true. Learned counsel for the complainant -petitioner accordingly, submitted that the provisions of Rule 7 of the said Rules were complied with and accordingly, the impugned order is absolutely illegal and the same cannot be sustained in the eyes of law.;