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2008 DIGILAW 1253 (PAT)

Most. Bindu Devi v. State Of Bihar

2008-08-28

GHANSHYAM PRASAD

body2008
Judgment 1. This revision application has been preferred against the order dated 12.7.2005 passed by the 1st Additional Sessions Judge, Motihari in Criminal Revision No. 169/2003 thereby the learned Additional Sessions Judge has set aside the order of cognizance dated 24.5.2003 passed by Sri P.N. Prasad, Judicial Magistrate, 1st Class, Motihari in Complaint Case No. 947/2002, Trial No. 164/2003. The learned Magistrate after inquiry under Section 202 of the Code of Criminal Procedure had taken cognizance against the opposite party Nos. 2 to 12 under Sections 147, 148, 325, 302/34 and 120-B of the Indian Penal Code. 2. The petitioner is widow of deceased Harendra Singh. She filed complaint on 6.6.2002 before the Chief Judicial Magistrate, East Champaran, Motihari bearing complaint case No,, 947/02 against fifteen persons including opposite parties under the above Sections of Penal Code, Opposite party Nos. 2 to 10 are police personnel and at the relevant time, they were posted at Kesharia Police Station. Opposite Party Nos. 11 and 12 are co-villagers of the complainant. 3. The case of prosecution in brief is that the victim Harendra Singh was aged about forty years and was well abled and healthy man. He had been implicated in some criminal cases at the instance of his co-villagers. At the relevant time he was working outside the State and due to that he had no knowledge of pendency of criminal cases. On 31.5.2002 he had came to village in connection with marriage of his daughter. At about 10 A.M. he was resting on Machan situated by the side of his house. In the meantime, some villagers informed the local police about the presence of the victim. It is alleged that all the police-accused came to village. The police and co-villagers caught the victim and assaulted him by Danda, fats and fists. The police thereafter, brought him in Police Station, locked him in Hajat and brutally assaulted him, as a result of which he became unconscious. Ultimately, while he was being shifted to Motihari hospital by the police, he died on the way. The petitioner, who is widow of the victim, claims hereself as eye witness along with some other relations and villagers. 4. The learned Chief Judicial Magistrate, Motihari after examining the complainant on oath transferred the complaint case to the Court of subordinate Magistrate. The Magistrate in course of inquiry examined five witnesses. The petitioner, who is widow of the victim, claims hereself as eye witness along with some other relations and villagers. 4. The learned Chief Judicial Magistrate, Motihari after examining the complainant on oath transferred the complaint case to the Court of subordinate Magistrate. The Magistrate in course of inquiry examined five witnesses. Photo copy of post mortem report and inquest report were also brought on record. The Magistrate ultimately took cognizance against Opposite Parties. Out of fifteen accused persons the Magistrate took cognizance only against eleven persons and the rests were discharged. 5. The opposite parties preferred Criminal Revision before the Sessions Judge which was ultimately heard by 1st Additional Sessions Judge who set aside the order of cognizance. It appears from the impugned order that two fold arguments were advanced by the revisions before learned Additional Sessions Judge. The first was that the learned Chief Judicial Magistrate had no power to transfer case to another Magistrate under Section 202 of the Code of Criminal Procedure. Other submission was that the offence alleged to have been committed by the police personnels was committed in course of discharge of official duty and hence they are entitled to protection under Section 197 of the Code of Criminal Procedure and therefore the Magistrate had no power to take cognizance against them without sanction of the competent authority of the State Government. The learned Additional Sessions Judge upheld the contention and set aside the order of cognizance. 6. In course of submission learned counsel for the petitioner urged that the learned Additional Sessions Judge has not properly appreciated the case as well as evidence adduced on behalf of the complainant. It is further submitted that the learned Chief Judicial Magistrate did not commit any error of law by transferring the complaint case to the subordinate Magistrate for inquiry. Section 192(1) of the Code of Criminal Procedure gives power to the Chief Judicial Magistrate to transfer the case after taking cognizance of the offence to any competent Magistrate subordinate to him for inquiry and disposal. The decisions referred in the impugned order do not apply in the facts and circumstances of this case. It is further submitted that the police/accused are not entitled to get protection of Section 197 of the Code of Criminal Procedure as offence was not committed in course of discharge of official duty. The allegation comes within custodial death. The decisions referred in the impugned order do not apply in the facts and circumstances of this case. It is further submitted that the police/accused are not entitled to get protection of Section 197 of the Code of Criminal Procedure as offence was not committed in course of discharge of official duty. The allegation comes within custodial death. The death of the deceased was caused by use of force and torture while he was in police custody. The acts alleged had no nexus with the discharge of official duty and hence no sanction was required for prosecution against them. The learned Additional Sessions Judge has committed illegality by giving protection of Section 197 of the Code of Criminal Procedure to the police/accused and that too at the stage of taking cognizance. 7. On the other hand, learned counsel for Opposite Parties submitted that the learned Additional Sessions Judge has rightly set aside the order taking cognizance on the ground of absence of sanction under Section 197 of the Code of Criminal Procedure. The victim was actually a veteran criminal and on the alleged date of occurrence he was terrorizing the villagers by resorting indiscriminate firing. Actually villagers assaulted the victim, as a result of which he died. The police attempted to provide medical treatment to the victim but he succumbed to injuries. Learned counsel for opposite parties in support of his contention regarding protection under Section 197 of the Code of Criminal Procedure has relied upon several decisions including 1987 BLJ 874 , 1996 BBCJ 596 , AIR 1956 SC 44 , (1998) 1 SCC 205 , AIR 2006 SC 1599 and (2001) 6 SCC 704 . 8. There is no dispute that Section 197 of the Code of Criminal Procedure provides umbrelia to public servant against vexatious prosecution for the acts, omissions and commissions purported to be done in discharge of official duty. It bars the Court from taking cognizance against public servant for such ommission and commission unless sanction is obtained from the competent authority. 9. I have no doubt in my mind in view of pronouncements of Apex Court in various decisions including (1998)1 SCC 205 and 2006 Supreme Court page 1599, that the matter of sanction being one dealting with the jurisdiction of the Court can be raised and decided at any stage of the proceeding. It cannot be postponed for being decided at later stage. It cannot be postponed for being decided at later stage. Therefore, the learned Additional Sessions Judge has rightly decided the matter at the time of hearing of the revision application. In paragraph 24 of the above decision reported in (1998)1 SCC 205 it has been held as follows; "This being the position it would be unreasonable to hold that the accused even though might have really acted in discharge of his official duty for which the complaints have been lodged yet he will have to wait till the stage under subsection (4) Section 246 of the Code is reached or at least till he will be able to bring in relevant materials while cross-examining the prosecution witnesses. On the other hand it would be logical to hold that the matter being one dealing with the jurisdiction of the Court to take cognizance, the accused would be entitled to produce the relevant and material documents which can be admitted into evidence without formal proof, for the limited consideration of the Court whether the necessary ingredients to attract Section 197 of the Code and the consequential ouster of jurisdiction of the Court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary material which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of these jurisdictions or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority." 10. In paragraph 70 of the decision reported in 2006 Supreme Court 1599 : 2006 (1) PCCR 329 (SC) (Shankaran Moitra vs. Sadhna Das and anr.) it has been held as follows: "70. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the objects sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage, we cannot therefore accede to the request to postpone a decision on this question." 11. However, in this case the main question is as to whether the acts complained of in the complaint petition have any nexus with discharge of official duty. In complaint petition, vide paragraph 1, it has been alleged that the police personnel after arresting the victim kept him in police lock up and in police lock-up the victim was brutally assaulted with Danda, fists and fights, as a result of which he became unconscious. When the condition of victim started deteriorating the police personnel attempted to shift him in hospital but the victim died on way to hospital. Other allegation is that the police in order to hush up the matter fabricated some papers in connivance with Magistrate and doctor. 12. The order of the Judicial Magistrate would go to show that in the post mortem report the doctor found as many as eleven injuries on the person of the victim caused by hard and blunt substance. The victim died as a result of injuries inflicted on the head. In course of inquiry, apart from the complaint, who is widow of the deceased, other witnesses also supported the allegation. The learned Magistrates upon consideration of post mortem report and evidence found that the victim was assaulted while he was in police custody. Thereafter, in order to save their skin a case bearing Kesaria P.S. Case No. 76/02 was registered against the victim. 13. There is no manner of dobut that the allegation levelled in the complaint petition is allegation of custodial death/violence. Thereafter, in order to save their skin a case bearing Kesaria P.S. Case No. 76/02 was registered against the victim. 13. There is no manner of dobut that the allegation levelled in the complaint petition is allegation of custodial death/violence. The Apex Court in several decisions has viewed it as one of the worst crime in civilized society and violation of basic human rights. The Apex Court in a decision reported in (2005) 9 Supreme Court Cases 631 has condemned such action of the police in severest words. In paragraph 7 of the judgment it has been observed as follows: "The Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilized society governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilized nation and encourages the men in "khakhi" to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crop, the foundations of criminal justice delivery system would be shaken and civilization itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The Courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judicia itself, which if it happens, will be a sad day, for anyone to reckon with." 14. Similar sentiment has been expressed by the Apex Court in the decisions reported in (1997)1 SCC 416 (D.K. Basu vs. State of W.B.) and (2006)3 SCC 178 : 2006 (1) PCCR 275 (SC) (Sube Singh vs. State of Haryana and Others) and also held that it is per se actionable both in civil and criminal law. 15. in view of the nature of crime and its serious implication in the society it is hard to believe that crime of custodial death/violence is also protected under Section 197 of the Code of Criminal Procedure. 15. in view of the nature of crime and its serious implication in the society it is hard to believe that crime of custodial death/violence is also protected under Section 197 of the Code of Criminal Procedure. Absolutely, there cannot be any nexus between such crime and discharge of official duty of the police which may require any sanction for prosecution. The Supreme Court in decision reported in (2000)8 SCC 131 has held the similar view. In paragraphs 19 and 21 it has been held as follows: "19. Even under Section 197 of the Code no protection has been granted to public servants for the type of acts alleged in the case against the appellants. Decisions are a legion relating to the scope of the protection under Section 197(1) of the Code. In Matajog Dobey vs. H.C. Bhari this Court made a slight deviation from the view adopted by the Judicia! Committee of the Privy Council in Giil case. This Court after referring to earlier decisions summed up the scope of Section 197(1) of the Code thus: "Thus there must be a reasonable connection between the act and the discharge of the official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." 21. If a police officer dealing with law and order duty uses force against unruly persons, either in his own defence or in the defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of Section 197 of the Code as well as Section 64(3) of the KP Act. But if a police officer assaults a prisoner inside the lock-up he cannot claim such act to be connected with discharge of his authority or exercise of his duty unless he establishes that he did such act in his defence or in defence of others or any property. Similarly, if a police officer wrongfully confines a person in the lockup beyond a period of 24 hours without the sanction of a Magistrate or an order of a Court it would be an offence for which he cannot claim any production in the normal course, nor can he claim that such act was done in exercise of his official duty. A policeman keeping a person in the lock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority." 16. Thus from the above discussions of the facts and observations of the Supreme Court, this Court is of the view that protection guaranteed under Section 197 of the Code of Criminal Procedure Code is not available in this case to the police/accused. The impugned order of learned Additional Sessions Judge is apparently bad and illegal. 17. So far other point is concerned, it is quite apparent from Section 192(1) of the Code Criminal Procedure that the Chief Judicial Magistrate has power to transfer the case after taking cognizance to any competent Magistrate subordinate to him for inquiry and disposal. In this case it appears that the learned Chief Judicial Magistrate after taking cognizance transferred the case to the subordinate Magistrate for inquiry under Section 202 of the Code of Criminal Procedure. All witnesses were examined by one Magistrate. At last it was transferred to the Court of other Magistrate by order of the Sessions Judge on the basis of application filed by the complainant. Therefore, no illegality was committed by transferring the case to other Magistrate before final order. 18. In the result, this revision application is allowed. The impugned order dated 12.7.2005 passed in CriminalRevision No. 169/2003 is hereby set aside. The order of cognizance dated 24.5.2003 passed by the learned Judicial Magistrate, Motihari is restored but only against Opposite Party Nos. 2, 3, 4, 6, 8, 12. This revision has already been dismissed for default against Opposite Party Nos. 5, 7, 9 and 10.