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2006 DIGILAW 1497 (AP)

G. SIVARAMA KRISHNA v. T. PRASAD

2006-11-28

T.CH.SURYA RAO

body2006
( 1 ) THE petitioners, who are a3 and A4 in the case, seek to invoke the extraordinary jurisdiction of this Court under section 482 of the Code of Criminal procedure to quash the proceedings initiated against them. ( 2 ) A charge-sheet was filed against the petitioners and others before the ii Additional Judicial Magistrate of First class, Khammam, alleging inter alia the offences punishable under Sections 342, 348, 352 of the Indian Penal Code and section 3 (1) (x) and Section 3 (2) (vii) of s. C. /s. T. (Prevention of Atrocities) Act. On a report given by one, Talari Prasad Rao on 24-9-2002, A2 in the crime registered initially the case in Crime No. 86 of 2002 under Section 174 of the Code of Criminal procedure and issued the First Information report. Investigation was taken up by the then Circle Inspector of Police, Kothagudem rural Circle. Subsequently, on the instructions given by the Additional D. G. P. , C. I. D. , the investigation was entrusted to C. I. D. , P. C. R, cell, taking it away from the local police. The Deputy Superintendent of Police, C. I. D. , eventually after completing the investigation laid the charge-sheet against the petitioners and two others. ( 3 ) THE case of the prosecution was that Al, the Sub-Inspector of Police, A2, the Head Constable of Police and A3 and a4, the Police Constables of Chandrugonda police Station committed the offences alleged. Alleging theft of cattle, one, Nomula krishnaiah lodged a report with A2 on 17-9-2002; inter alia he mentioned the names of the suspects. A2, who was the station House Officer of the Police Station as Al was away on Ganesh Nimarjanam bandobust duty at Hyderabad, deputed a4 to bring the suspects to the Police station for interrogation on 22-9-2002. He registered the crime on Ex. Pl report as crime No. 85 of 2002 under Section 379 of the Indian Penal Code. A4 brought D1 from the village and produced him before a2. After ascertaining certain details from dl, A2 sent him away On the following date on 23-9-2002, A2 again deputed A3 and A4 to get D1 and D2 and the other witnesses to the Police Station. A4 brought D1 from the village and produced him before a2. After ascertaining certain details from dl, A2 sent him away On the following date on 23-9-2002, A2 again deputed A3 and A4 to get D1 and D2 and the other witnesses to the Police Station. A3 and a4 brought Dl and D2 and the witnesses to the Police Station by abusing them in filthy language in their caste name and detained Dl and D2 in the Police Station. On the same day, the Sub-Inspector, A1, returned from bandobust duty from hyderabad. A1 interrogated Dl and D2 and other witnesses for some time and entrusted the work of interrogation to A3 and A4 and left the Police Station. In the absence of A1 and A2, A3 and A4 interrogated the suspects so as to extract confessions from them in the presence of other witnesses, by abusing them in filthy language by raising their caste name and ultimately made D1 and D2 to confess the commission of the offence along with one kukkala Nageshwar Rao. On the same day, L. Ws. 12 and 14 approached Al seeking release of the suspects. But, believing the words of A3 and A4, Al detained Dl and D2 and released L. Ws. 6, 10 and 22. On 24-9-2002 at about 10. 00 a. m. , L. W. I9 came to the Police Station to handover the government property to A1. Both of them sat together in the room of A1 for taking over the properties after getting it weighed. By then, Dl and D2 were in the premises of the Police Station. Al asked Dl and D2 to bring out articles from Cell of Arms to Sub-Inspector's room. In the process of carrying the articles, d1 and D2 who found the insecticide poison tin and steel glass in the Cell of Anns decided to give up their lives instead of facing further interrogation and consumed insecticide poison available in the Cell of arms. A little later both of them ran out of the Cell of Arms and started vomiting. L. W. 15, who came to meet Al, saw Dl and D2 vomiting. A little later both of them ran out of the Cell of Arms and started vomiting. L. W. 15, who came to meet Al, saw Dl and D2 vomiting. On enquiry by him, he was informed by Dl and D2 that they consumed poison available in the Police station and he immediately informed the same to A1 A1 took Dl and D2 to the local Doctor, who advised him to take them to Kothagudem for expert treatment as their condition was critical. Accordingly, they were shifted to the Doctor, who examined them and declared to be dead. In order to conceal the offence in the report lodged on 17-9-2002 the date was altered as if it were lodged on 23-9-2002 and issued the First Information Report afresh in Crime No. 85 of 2002. On the report of L. W. 1, on 24-9-2002 at 2. 30 hours as aforesaid A2 registered the case in Crime no. 86 of 2002 under Section 174 of the code of Criminal Procedure. Eventually, the charge-sheet was filed as aforesaid against the petitioners and two others. ( 4 ) PRIMA facie it is seen from the record filed by the investigating agency before the Court that the petitioners and two others have brought two deceased from their village for the purpose of interrogation, detained them in the Police station till 23-9-2002. On 23-9-2002 both the deceased were said to have consumed pesticide found in a bottle in the Cell of arms in the Police Station. Charge-sheet further shows that at the time when they were being brought, A3 and A4 said to have abused them in the name of their caste and when they were brought to the police Station at the time of interrogation, again Al and A2 were said to have abused them in the name of their caste. Dl and D2 belonged to Scheduled Caste. The allegations, thus, made inter alia in the charge-sheet coupled with the other material available on record show prima facie the above acts on the part of Al to A4. They attract the offences alleged. ( 5 ) THE petitioners now seek to quash the proceedings on the premise that human Rights Committee conducted an enquiry into the above episode and submitted its report. Inter alia in its report the committee exonerated all the four police personnel. They attract the offences alleged. ( 5 ) THE petitioners now seek to quash the proceedings on the premise that human Rights Committee conducted an enquiry into the above episode and submitted its report. Inter alia in its report the committee exonerated all the four police personnel. The report in this case was drafted in HRC No. 3 of 2002 by the members of the committee, who are a former Judge of this Court and former judicial officer. A lengthy and elaborate report was submitted by the committee on 23-5-2003 after having examined as many as 13 witnesses on the side of the deceased and five witnesses on the side of the respondents and the documents under Exs. Pl to P11. In view of the clear report given by the Human Rights Committee, it is sought to be contended before this Court that the instant prosecution is not maintainable against the petitioners, who have been exonerated earlier by a validly constituted committee and therefore the doctrine of issue estoppel would operate. That seems to be the main contention of the petitioners. It is next sought to be contended that the offence punishable under Section 3 (1) (x)of S. C. /s. T. (Prevention of Atrocities) Act has not been attracted having regard to the allegations made inter alia in the charge-sheet or in the individual statements of the witnesses recorded by the investigating Officer. ( 6 ) APROPOS the first contention, it is obvious from the fact situation obtaining in the case that in respect of the same allegations two members of the Human rights Committee conducted an enquiry by examining witnesses on either side and by examining documents produced and concluded inter alia in the report prepared in detail that the petitioners were not responsible for the alleged offence. Secondly, they were exonerated in toto from the accusations by the committee. ( 7 ) THE report of the Human Rights committee is not part of the investigation in this case. In ordinary course, it merits no consideration. Secondly, they were exonerated in toto from the accusations by the committee. ( 7 ) THE report of the Human Rights committee is not part of the investigation in this case. In ordinary course, it merits no consideration. In an application of this sort filed under Section 482 of the Code of criminal Procedure seeking to quash the proceedings, it is trite that the charge-sheet, first Information Report, the statements of the witnesses and other documents, which have been gathered by the Investigating officer during the course of investigation and annexed to the charge-sheet forming part of the record are alone merit consideration by the Court so as to discern a prima facie case or not. No other extraneous material can be permitted to be produced before this Court in an application filed under Section 482 of the Code of criminal Procedure. It is an altogether different matter when the report is construed as a judgment of a competent Court having jurisdiction to decide. Human Rights committee is a forum established by the state Government pursuant to the observations made by the Apex Court in d. K. Basu's case (supra ). It is, therefore, not a Court established by the State government. The doctrine of issue estoppel or res judicata applied only when a finding is reached on a fact by the Court which fact when again comes up for consideration before another Court. The said doctrine can be invoked in cases where doctrine of autrefois acquit or autrefois convict cannot be invoked having regard to the Section 300 of the Code. Law is settled in this regard and I am reinforced in my above view by the Full Bench judgment of this Court in T. V. Sarma v. R. Meeraiah, 1980 (1) APLJ 188 . The expression 'issue estoppel' was first coined by Hingins, J. , in Australia in 1921 in his dissenting judgment in Hoysted v. Taxation Commissioner, (29 CLR p. 537 ). Twenty years thereafter in Blair v. Curran, (62 CLR P. 464) it was considered again by the same Court. The same was considered by the British court by Lord Denning M. R. and Lord diplock L. J. in the Court of appeal. It is nothing but an extension of the principle of res judicata in civil cases. As discussed hereinabove, it falls short of the doctrine of autrefois acquit or autrefois convict. The same was considered by the British court by Lord Denning M. R. and Lord diplock L. J. in the Court of appeal. It is nothing but an extension of the principle of res judicata in civil cases. As discussed hereinabove, it falls short of the doctrine of autrefois acquit or autrefois convict. A finding reached by the Court in respect of a fact in a proceeding on the principle of public policy cannot be permitted to be tried again by the same Court or a competent court having jurisdiction, although that finding may not operate as a bar to the main case. The basis for the above doctrine seems to be the greater public policy. Issue settled on a fact cannot be permitted to be re-agitated, again which has invariably the effect of vexing the accused twice. That is how the doctrine of issue estoppel came to be enunciated by the Courts, although it has no statutory support. It is now fairly settled. ( 8 ) A Constitution Bench of the Apex court in Manipur Administration v. Bira singh, AIR 1965 SC 87 , held that where an issue of fact has been tried by a competent Court on a former occasion and finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence, which might be permitted by the terms of section 403 (2) under the old Code (Section 300 under the new Code ). The rule is not the same as the plea of double jeopardy or autrefois acquit. The rule does not introduce any variation in the Code of criminal Procedure either in investigation, enquiry or trial. It also does not prevent the trial of any offence as does autrefois acquit but only precludes evidence being lead to prove a fact in issue, as regards which question has already been lead and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. It also does not prevent the trial of any offence as does autrefois acquit but only precludes evidence being lead to prove a fact in issue, as regards which question has already been lead and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. The rule thus relates only to the admissibility of evidence, which is designed to upset a finding of fact recorded by a competent Court at a previous trial. What is a sine qua non is that a finding shall have to be reached on evidence by a competent court in a proceeding and the same finding cannot be upset by another Court albeit in a different proceeding for a different offence. The report submitted by the Human Rights committee, in my considered view, cannot be treated as a finding given by a competent court having jurisdiction to adjudicate. There is no process of adjudication is involved and it is only a fact finding body having been established by the State as a stopgap arrangement before the constitution of a regular Human Rights Commission. For the above reasons, the contention that the report of Human Rights Committee operates as an issue estoppel cannot be countenanced. ( 9 ) FROM a perusal of the First information Report and the statements of the witnesses recorded under Section 161 of the Code it is prima facie discernible that an allegation of abuse in the name of the caste has been clearly levelled against the petitioners. Mere abuse in a language, however filthy or derogatory it might be, de hors the necessary intention to do so will not attract squarely the provisions of Section 3 (l) (x) of the S. C. and S. T. (Prevention of atrocities) Act. It is, therefore, to be seen whether such an abuse alleged against the petitioners has been made with the necessary intention to humiliate the deceased in this case in the public view. However, intention being a mental element shall have to be gathered from out of the facts and circumstances of each case. ( 10 ) THE learned Additional Public prosecutor rightly contended that this is not the stage to consider the same and it can be seen only at the time of the trial. However, intention being a mental element shall have to be gathered from out of the facts and circumstances of each case. ( 10 ) THE learned Additional Public prosecutor rightly contended that this is not the stage to consider the same and it can be seen only at the time of the trial. Therefore, even the second contention of the learned Counsel that the offence punishable under Section 3 (l) (x) of the S. C. S. T. (Prevention of Atrocities) Act is not attracted qua the petitioners cannot at this stage be considered. ( 11 ) FOR the above reasons, the request of the petitioners to quash the proceedings initiated against them cannot be considered. ( 12 ) BEFORE parting with, one contention of the learned Counsel merits consideration at this stage. The petitioners are Police constables. Having been deputed to bring dl and D2 to the Police Station from their village by their superior officer, namely, the sub-Inspector of Police and having been duty-bound, they brought Dl and D2 to the police Station from the village. It is only in the process they were alleged to have uttered the abusive words. A committee which has been constituted by the State government having gone deep into the matter exonerated them from the said accusation. Unfortunately, on account of the legal principles, as discussed hereinabove, that report of Human Rights Committee is of no avail at this stage to the petitioners. If they are arrested, in execution of the warrants pending against them, it may have far reaching consequences. Under the circumstances, it is appropriate to direct them to surrender before the Special court and seek bail; in which event, that court having regard to the fact that the report of the Human Rights Committee has exonerated them from the accusations, may consider their request for bail by passing appropriate orders and may simultaneously direct the recall of the warrants pending against them for execution. ( 13 ) WITH the above observation, the criminal petition is dismissed. .