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2013 DIGILAW 1726 (BOM)

LATA BHARAM BHOSALE v. STATE OF MAHARASHTRA

2013-08-26

A.M.THIPSAY

body2013
ORDER : All these applications can be conveniently disposed of by this common order. The orders impugned in all these applications have been passed in different revision applications, but all such revision applications were arising out of the order issuing process as passed by the Judicial Magistrate, First Class, Kopargaon in R.C.C. No. 161/2009. 2. The said case arose on a complaint filed by the present applicant against 18 persons, who all, are before me as respondents in the present proceedings. The applicant alleged that the respondents, who are all Police Officers, had committed offences punishable under section 323, 324 325, 326, 504 and 506 of the Indian Penal Code read with section 34 of the Indian Penal Code. The substance of the avernments made in the complaint lodged by the applicant before the Magistrate was to the effect that on 2-8-2009, the respondents, without any reason, apprehended the applicant's son Changdeo Bhosale, assaulted him, put in him a Car and took him away to Kopargaon Police Station. Even after having brought to the Police Station, the son of the applicant was assaulted by some of the respondents. Son of the applicant Changdeo sustained serious injuries as a result of the assault and ill-treatment. It is thereafter that Changdeo was shown as arrested in some case and was produced before the Magistrate on the next day i.e. on 3-8-2009. Changdeo made a complaint before the Magistrate to the effect that he was ill-treated and assaulted by the Police. The Magistrate thereafter got him medically examined. On the complaint lodged by the applicant, the Magistrate, after considering the material before him, came to the conclusion that there were sufficient grounds for proceeding against all the accused persons i.e. the respondents herein. He, therefore, directed process to be against them, requiring them to appear and answer to the charge of the aforesaid offences. The respondents, by filing three separate revision applications approached the Court of Sessions, challenging the order of issuance of process. The learned Additional Sessions Judge who heard the said three revision applications, by separate but identical orders, allowed the revision applications and quashed the order issuing process passed by the Magistrate on 12-8-2009. Being aggrieved thereby, the applicant has approached this Court by invoking the inherent jurisdiction and powers of this Court under section 482 of the Code of Criminal Procedure. 3. I have heard Mr. Being aggrieved thereby, the applicant has approached this Court by invoking the inherent jurisdiction and powers of this Court under section 482 of the Code of Criminal Procedure. 3. I have heard Mr. P. B. Shirsath, learned counsel for the applicant. I have heard Mr. P. N. Muley, learned A.P.P. for State. Nobody appears for other respondents, who are duly served with notices. 4. The learned counsel for the applicant submitted that the orders passed by the Additional Sessions Judge in revision applications are patently illegal. He submitted that the said orders came to be passed without considering the merits of matter and only on the basis that 'since the Magistrate had reported the matter to the District and Sessions Judge, Ahmednagar, he ought to have waited for directions of the District and Sessions Judge, Ahmednagar before proceeding further with the complaint lodged by the applicant against the respondents.' According to the learned counsel, it was not permissible for the revisional Court to have set aside the impugned order in this manner. 5. The learned A.P.P. did not justify the orders passed by the Additional Sessions Judge in the revisions. 6. I have gone through the complaint lodged by the applicant before the Magistrate, the order passed by the Magistrate issuing process and the orders passed by the Court of Sessions in Revisions. 7. In his order, the learned Magistrate considered the material that was placed before him. He also took into consideration the question of sanction under section 197 of the Code of Criminal Procedure and observed that in view of the decision of the Supreme Court of India in P. K. Pradhan vs. State of Sikkim, {2001 (2) Bom. Criminal Cases 750, the question of sanction could be kept open, and that the cognizance of the allegations made in the complaint could be taken at that stage without such sanction. The learned Magistrate categorically recorded his view to the effect that 'there were sufficient grounds for proceeding against the accused Nos. 1 to 18'. 8. While dealing with the revision applications against the order issuing process, indeed, the learned Additional Sessions Judge does not appear to have considered the matter on merits. The learned Magistrate categorically recorded his view to the effect that 'there were sufficient grounds for proceeding against the accused Nos. 1 to 18'. 8. While dealing with the revision applications against the order issuing process, indeed, the learned Additional Sessions Judge does not appear to have considered the matter on merits. The Additional Sessions Judge observed that the Magistrate had, while dealing with the question of remand in Police custody had reported to the District and Sessions Judge, Ahmednagar, regarding ill-treatment caused to the accused i.e. the son of the applicant. After noting this, the learned Additional Sessions Judge observed as follows :- "But it is further observed that process was already issued in this proceeding and concerned Magistrate did not await to directions of to Hon'ble District and Sessions Judge Ahmednagar. Provisions of law expect that the concerned magistrate is expected to wait for further directions from to Hon'ble District and Sessions Judge Ahmednagar. Moreover, for dealing with allegations of ill-treatment at the hands of police during police custody certain procedure is laid down under the law and Magistrate is expected to follow the same. But prior to that complaint was got registered and process seems to have issued that too on the basis of complaint lodged by sister of one of the concerned accused. In my opinion said procedure followed by Ld. Lower Court is totally wrong and therefore order passed on the basis of same is illegal and requires to be interfered and provisions of section 397 and 399 Criminal Procedure Code authorises this Court to do so in order to prevent from further illegality." (Emphasis supplied). 9. In my opinion, the order passed by the learned Additional Sessions Judge is patently erroneous, and perverse. As a matter of fact, the criticism of the order passed by the Magistrate, as done by the Additional Sessions Judge, is wholly unwarranted and uncalled for. 10. The learned Additional Sessions Judge has held that for dealing with the allegations of ill-treatment at the hands of police during police custody certain procedure is laid down 'under the law' and the Magistrate is expected to follow the same. The learned Additional Sessions Judge however did not refer to any provisions of law, in which, according to him, a separate procedure for dealing with the complaints filed against the Police has been laid down. The learned Additional Sessions Judge however did not refer to any provisions of law, in which, according to him, a separate procedure for dealing with the complaints filed against the Police has been laid down. In view of the emphasis placed by him on reporting of the police atrocities by the Magistrate to the District and Sessions Judge, it appears that he was referring to the relevant provisions in the Criminal Manual issued by the High Court for the guidance of the sub-ordinate Criminal Courts. The Criminal Manual vide para 3 of Chapter-I lays down that if any allegation of ill-treatment is made by a prisoner, the Magistrate shall examine the prisoner's body, if the prisoner consents and shall place on record the result of his examination. It also lays down that if the Magistrate finds that there is reason to suspect that the allegation is well founded, he shall at once record the complaint and cause the prisoner to be examined by a Medical Officer or Registered Medical Practitioner as provided in section 54 of the Code and shall make a report to the Sessions Judge. The view of the Additional Sessions Judge seems to be that the Magistrate has to stop the matter at that stage and that, the Magistrate would have no power to take cognizance of the offence or offences in respect of which the complaint has been lodged before him. This view of the Additional Sessions Judge is entirely incorrect. The requirement laid down in the Criminal Manual of reporting the matter to the Sessions Judge is with the object of keeping the Sessions Judge informed about the Police atrocities in general. It may, at times, happen that Magistrate himself may not have jurisdiction to take cognizance of the alleged offences and such situation is also expected to be met by reporting the matter to the Sessions Judge. The learned Additional Sessions Judge has not referred to the provisions of Criminal Manual but apparently it is with the reference to these provisions that he was of the opinion that the Magistrate should not have proceeded and should have waited and watched what action the Sessions Judge would be taking in the matter. The Criminal Manual merely requires reporting the matter to the Sessions Judge and does not state that the Magistrate cannot proceed with the complaint in accordance with the provisions of Code. The Criminal Manual merely requires reporting the matter to the Sessions Judge and does not state that the Magistrate cannot proceed with the complaint in accordance with the provisions of Code. The reporting of the matter to the Sessions Judge has not been provided as a substitute for the procedure to be adopted by the Magistrate on receiving the complaint of which he is competent to take cognizance. Moreover in this case, the complaint was not of the victim himself but of his mother. 11. The approach adopted by the Additional Sessions Judge is shocking. In the first place, instead of making a general statement about 'procedure of law' and 'certain procedure laid down under the law', the Additional Sessions Judge ought to have referred to the precise provisions, which laid down what he thought to be the law. Further, his observation that 'process had been issued' and 'that too on the basis of complaint lodged by the sister of one of the accused' are impossible to comprehend. He was dealing with the case where the police officers i.e. respondents were the accused. Complaint had been lodged by the mother of the arrested person Changdeo and not by a sister of any of the Police Officers, who are the accused. Perhaps, the Additional Sessions Judge used the phrase 'concerned accused' with reference to the persons arrested by the Police, but even in that case, the complaint has not been lodged by a sister of such a person. From the phraseology used by the Additional Sessions Judge, his view appears to be that even if, the police assault a person and such person makes a complaint regarding the assault, still the person complaining would remain the accused only and the Police Officer would always remain 'a complainant or Investigating Officer'. I am constrained to make these somewhat harsh remarks, as the perversity in the order passed by the Additional Sessions Judge and his approach towards the allegations of the Police atrocities levelled by the victim there-of as is reflected from his order itself-appears to be perverse. I am constrained to make these somewhat harsh remarks, as the perversity in the order passed by the Additional Sessions Judge and his approach towards the allegations of the Police atrocities levelled by the victim there-of as is reflected from his order itself-appears to be perverse. The view of the Additional Sessions Judge is not only wrong but is shocking in as much as his view seems to be that the High Court by issuing the Criminal Manual has given extra protection to the Police and had taken the Police Officers beyond the power of the Magistrate, in case they commit offences against the body of the persons arrested by them. His view seems to be that it is only the Sessions Judge, who would be competent to decide whether or not and if-so-what action should be taken against the Police Officers, who are prima facie found to have beaten a person. Not only this view is incorrect on a reading of the said para 3 itself but the same is also clearly contrary to the jurisdiction, power and authority vested in a Magistrate by the Code of Criminal Procedure. As aforesaid, the provision in the Criminal Manual is intended to keep the Sessions Judge informed about the police atrocities and enable him, if necessary, to protect the Magistrate from any problems as might be created for him by the Police. It is to ensure that the matter is not hushed up at the Magistrate's level and is brought to the notice of the Sessions Judge so that it can be taken to a logical end in accordance with law, that the provision has been incorporated; and not for providing immunities to the police officers from statutory power vested in a Magistrate of taking cognizance of offences in accordance with the provisions of law and of proceeding against the persons, who are prima facie believed or suspected to have committed offences. 12. If the Additional Sessions Judge would have thought that there was no material for proceeding against the respondents or that there was any statutory bar to the Magistrate taking cognizance of the alleged offences, he could have dealt with the order passed by the Magistrate on merits. The Additional Sessions Judge did not touch the subject as to whether there was a case for interfering with the order issuing process. 13. The Additional Sessions Judge did not touch the subject as to whether there was a case for interfering with the order issuing process. 13. On the ground that the Magistrate should have waited for the directions of the District and Sessions Judge, and that till then he should not have dealt with the complaint, the Additional Sessions Judge was not entitled to interfere with the well reasoned order passed by the Magistrate. The impugned orders, therefore, are patently illegal and require interference in the inherent powers of this Court. 14. It however appears that the respondents had raised several other contentions on merits also before the Sessions Court. These contentions have not been dealt with by the learned Additional Sessions Judge, as he decided the matter in favour of the respondents (applicants before him) on a point which was totally irrelevant. In all fairness, therefore, though the impugned orders are being quashed and set aside, the matter needs to be remanded back to the Court of Sessions for considering the revision applications afresh, on merits and in accordance with law. It would be unfair to direct the trial Court to proceed with the complaint when the contentions of the respondents in the applications filed by them before the Court of Sessions, have not been dealt with. 15. In the result, the applications are disposed of as follows :- (a) The applications are allowed. The impugned orders are set aside. The matters are remanded back to the Court of Sessions with a direction to hear the revision applications afresh, on merits, in accordance with law and keeping in mind the legal position as to when and under what circumstances the order issuing process is liable to be interfered with. (b) The learned Sessions Judge for Ahmednagar shall ensure, by passing an appropriate order that the revision applications are not dealt with by the same Additional Sessions Judge, who had earlier heard and decided them. (c) Needless to say that such revision applications shall be decided expeditiously and preferably within a period of two months from today. 16. The applications are disposed of in the aforesaid terms.