Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1895 (ALL)

Madan Pal Singh v. State of U. P.

2022-12-01

SAURABH SHYAM SHAMSHERY

body2022
JUDGMENT : 1. In order to consider rival submissions, it is necessary to place brief facts of the case on record. 2. On 02.12.1999 a police party intercepted three persons in a routine patrolling duty and after exchange of firing two persons were apprehended but one person managed to run away. Said two injured-accused were arrested and three FIRs were lodged being Case Crime No. 228 of 1999, under Section 307 IPC and Case Crime No. 229 of 1999 as well as Case Crime No. 230 of 1999, under Section 25 Arms Act, Police Station Roza, District Shahjahanpur and accused Yaqub alias Gulam Khwaja and Arish were remanded to police custody. They were admitted in hospital and were under treatment and on advice of Doctors one of the accused, Yaqub when on the way to Spinal Surgery Unit of KGMC, Lucknow died on 04.12.1999. Post mortem was conducted wherein five injuries were found on his body. 3. In these circumstances, Saroon wife of deceased, Yaqub filed an application under Section 156(3) Cr.P.C. before Chief Judicial Magistrate, Shahjahanpur against police party, who have arrested deceased after exchange of firing with allegation that it was a death due to custodial torture. Said application was dismissed vide order dated 02.02.2001, however a revision thereof was allowed vide order dated 09.02.2001 and thereafter a FIR was lodged on 23.02.2001 against present applicant and other police personnel under Sections 147, 148, 149, 302 IPC, Police Station Roza, District Shahjahanpur. After investigation a final report was submitted on 24.10.2001. A notice was also issued by Human Right Commission on basis of an application filed by wife of deceased-accused in which a report was submitted that deceased was rightly arrested and he died due to injuries suffered during his arrest despite proper treatment. 4. The above referred final report dated 24.10.2001 was submitted before Trial Court, however, without calling a protest petition vide order dated 03.01.2002 the Court registered a criminal complaint case and issued notice to complainant, i.e., Saroon, wife of deceased and thereafter her statement was recorded under Section 200 Cr.P.C. as well as statements of two witnesses were also recorded under Section 202 Cr.P.C. and consequently by impugned order dated 28.09.2010 passed under Section 204 Cr.P.C., summons were issued against applicant and other persons to face trial under Sections 147, 148, 149, 302 IPC. 5. 5. Under the above factual background and on the basis of rival submissions issues before this Court for consideration are, whether without any protest petition a Magistrate while disapproving a final report can treat it to be a criminal complaint case and further on basis of statements recorded under Sections 200 and 202 Cr.P.C. could pass an order under Section 204 Cr.P.C. to summon accused persons and if answer to above issue is in affirmative, whether in facts and circumstances of present case order impugned passed under Section 204 Cr.P.C. is legally sustainable or not as well as whether applicant being a police personnel is entitled for protection from initiation of a criminal proceeding in question under Section 197 Cr.P.C. being without previous sanction? 6. Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Santosh Kumar Rai, learned counsel for applicant, vehemently urged that deceased-accused alongwith other accused were apprehended on 02.12.1999 after exchange of firing in injured condition and immediately they were produced before Magistrate who granted remand of accused by order dated 02.12.1999 that he had suffered serious injuries and was admitted in hospital and with further direction that accused be sent to custody after discharge from hospital. He was given treatment in hospital for spinal and head injuries and Senior counsel has placed reliance on medical treatment report and that after two days on 04.12.1999 he was referred to other hospital (Spinal Care Unit at KGMC, Lucknow) however he died while going to hospital and brought dead at KGMC, Lucknow. Therefore, without any dispute or challenge to the order of remand or otherwise any allegation of torture during remand by police personnel are not sustainable when accused was immediately, after arrest, admitted in the hospital. Police has fairly investigated the case and submitted a final report. Deceased died due to injuries suffered during his arrest and any allegations of custodial torture were false and baseless. On legal issue learned Senior Advocate placed reliance on H.S. Bains vs. The State (Union Territory of Chandigarh), AIR 1980 SC 1883 in order to show, what should be correct procedure with regard to arrest, investigation, police report and procedure adopted by Magistrate after filing of a final report. 7. Learned Senior Advocate further placed reliance on paragraphs 15 and 21 of Abhinandan Jha and others vs. Dinesh Mishra, AIR 1968 SC 117 , which are reproduced as under: “15. 7. Learned Senior Advocate further placed reliance on paragraphs 15 and 21 of Abhinandan Jha and others vs. Dinesh Mishra, AIR 1968 SC 117 , which are reproduced as under: “15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case in our opinion the Magistrate will have ample jurisdiction to give directions to the police, under Section 156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under Section 190(1)(c), notwithstanding the contrary opinion of the police, expressed in the final report.” “21. In these two appeals, one other fact will have to be taken note of. It is not very clear as to whether the Magistrate, in each of these cases, has chosen to treat the protest petitions, filed by the respective respondents, as complaints, because, we do not find that the Magistrate has adopted the suitable procedure indicated in the Code, when he takes cognizance of an offence, on a complaint made to him. It is not very clear as to whether the Magistrate, in each of these cases, has chosen to treat the protest petitions, filed by the respective respondents, as complaints, because, we do not find that the Magistrate has adopted the suitable procedure indicated in the Code, when he takes cognizance of an offence, on a complaint made to him. Therefore, while holding that the orders of the Magistrate, in each of these cases, directing the police to file charge-sheets, is Without jurisdiction, we make it clear that it is open to the Magistrate to treat the respective protest petitions, as complaints, and take further proceedings, according to law, and in the light of the views expressed by us, in this judgment.” 8. Reliance was also placed on para 16 of India Carat Pvt. Ltd. vs. State of Karnataka, 1989(2) SCC 132 , that: “16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer ;and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, there-fore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.” 9. Learned Senior Advocate placed reliance on State of Haryana and others vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 , that “ Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge”, such criminal proceedings can be quashed by High Court exercising inherent jurisdiction. 10. Sri V.P. Srivastava, Senior Advocate has also submitted that applicant is a police personnel, therefore, his actions are protected in the light of Section 197 Cr.P.C. as well as that Government Order dated 30.06.1975, said protection is extended to all police force and since there was no prior sanction, criminal proceedings are per se illegal. 11. Per contra, Sri Paritosh Malviya, learned AGA-I appearing for State, has rendered his assistance on legal issue that there are very serious charges against applicant and other police personnel of custodial torture of an arrested person, who later on died. The Magistrate cannot remain as a mere spectator and since he has considered it to be a complaint case, there was no illegality to summon the applicant and others on consideration of statements recorded under Sections 200 and 202 Cr.P.C. The protection granted under Section 197 Cr.P.C. is limited to any offence alleged to have been committed while acting or purporting to act in discharge of official duty only, however, allegations are such that it cannot be said to be an act in discharge of their official duty. 12. Heard learned counsel for parties, perused the record and written submissions. 13. 12. Heard learned counsel for parties, perused the record and written submissions. 13. In order to consider the first issue, whether a Magistrate while disapproving a final report without any protest petition could consider it to be a criminal complaint case and could proceed further, it would be relevant to refer para 17 of the judgment passed by Supreme Court in India Carat Pvt. Ltd. (supra) as under: “17. The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tufa Ram & Ors. v. Kishore Singh, [1978] 1 SCR 615 that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with.” (Emphasis added) 14. It is not in dispute that in the present case initially an application filed under Section 156(3) Cr.P.C. was rejected but on an order passed in revision to lodge FIR investigation was conducted but a final report was submitted. Therefore, before the Magistrate a complaint in form of an application under Section 156(3) Cr.P.C. was already on record. It is not in dispute that in the present case initially an application filed under Section 156(3) Cr.P.C. was rejected but on an order passed in revision to lodge FIR investigation was conducted but a final report was submitted. Therefore, before the Magistrate a complaint in form of an application under Section 156(3) Cr.P.C. was already on record. Though, normally in these circumstances when a final report was submitted a notice could be issued to complainant who can file a protest petition, which can be considered as a complaint, however, as referred in above referred paragraph of India Carat Pvt. Ltd. (supra) even in absence of a protest petition a complaint already filed under Section 156(3) Cr.P.C. could be considered as a criminal case and Magistrate may proceed further to ask the complainant to record his/her statement under Section 200 Cr.P.C. and statements of witnesses under Section 202 Cr.P.C. and if there are sufficient grounds to proceed against accused persons, he can issue summons under Section 204 Cr.P.C. As referred in India Carat Pvt. Ltd. (supra) that in case of police report that no case is made out against accused, the Magistrate can ignore the conclusion drawn by police and take cognizance under Section 190(1)(b) Cr.P.C. and issue process or in the alternative he can take cognizance of original complaint and examine the complainant and his witnesses and thereafter can issue process to accused, if he is of opinion that there are sufficient ground to proceed against accused and in present case the Magistrate has adopted similar procedure and original complaint filed under Section 156(3) Cr.P.C. was considered to be a complaint and after disapproving the final report proceeded to issue process after considering statements recorded under Sections 200 and 202 Cr.P.C. that there are sufficient ground to proceed under Section 204 Cr.P.C. 15. The order sheet also indicates that on 03.01.2002 Magistrate passed order that final report received, a criminal case be registered and issue notice to complainant. Thereafter on request of complainant her statement was recorded and further statements of witnesses were also recorded and on the basis of statements summons were issued. Therefore, there was no procedural irregularity or illegality adopted by Magistrate concerned as such there was no abuse of process of law. 16. Thereafter on request of complainant her statement was recorded and further statements of witnesses were also recorded and on the basis of statements summons were issued. Therefore, there was no procedural irregularity or illegality adopted by Magistrate concerned as such there was no abuse of process of law. 16. As the first issued is answered in affirmative, the Court now proceed to consider the second issue, whether order impugned is legally sustainable or not and that applicant being a police personnel is protected under Section 197 Cr.P.C. or not? 17. In order to consider the rival submissions on this issue, I have carefully perused the statements of complainant as well as witnesses. Complainant has alleged that deceased, her husband, was illegally arrested and it was a case of custodial torture. She further states that when police personnel’s were taking her husband to Lucknow, he told about torture committed on him during custody. Witnesses also narrated that allegation of custodial torture on deceased that it was communicated to them by victim. Considering the above statements though a prima facie case is made out against applicant and other police personnel’s, however, the facts and documents which are part of this record that deceased alongwith co-accused were arrested during a police raid in injured condition after exchange of firing and that he was medically examined that he suffered serious injuries, there are evidence of medical treatment also as well as per record victim was arrested on 02.11.1999 and was immediately admitted in hospital and order for remand was passed to be executed only after his discharge from hospital but before discharge considering his condition he was referred to KGMC, Lucknow when he died during journey. The cause of death, therefore, cannot be held outrightly to be due to custodial torture, if any. 18. In the order of remand, Magistrate had referred condition of victim after interaction with him. Therefore, prima facie it cannot be held that police personnel’s have done an act beyond their official duty. The Magistrate concerned ought to have considered before issuing summon, whether protection can be granted under Section 197 Cr.P.C. that without prior sanction no cognizance can be taken. However, the Magistrate has not even make an attempt to consider this aspect. Therefore, prima facie it cannot be held that police personnel’s have done an act beyond their official duty. The Magistrate concerned ought to have considered before issuing summon, whether protection can be granted under Section 197 Cr.P.C. that without prior sanction no cognizance can be taken. However, the Magistrate has not even make an attempt to consider this aspect. In this regard it would be relevant to reproduce few paragraphs of a judgment of Supreme Court in D. Devaraja vs. Owais Sabeer Hussain (2020) 7 SCC 695 : “65. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above. 66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government. 67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him. 69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority. 70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law. 71. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.” (Emphasis added) 19. As discussed in the penultimate paragraph that there are documents which shows that after arrest of victim he was admitted in hospital in injured condition and was put under treatment. As discussed in the penultimate paragraph that there are documents which shows that after arrest of victim he was admitted in hospital in injured condition and was put under treatment. The injuries were of serious nature and Magistrate while granting order of remand not only visited the hospital but interacted with victim also. Further, after arrested of victim on 02.12.1999 he was remained admitted in hospital from 02.12.1999 to 04.12.1999 when he was referred to Spinal Care Unit, KGMC, Lucknow and on way to said hospital on 04.12.1999 he died. In these circumstances the test, whether prior sanction is necessary is a satisfaction that alleged act has reasonable connection with official duty or not. It cannot be held, ignoring the documents on record, that act of applicant, a police personnel, was unconnected with official duty. 20. In these circumstances, considering the principle enumerated in Ch. Bhajan Lal (supra), specifically that, “where there is an express legal bar engrafted in any of the provisions of the Code or concerned Act (under which a criminal proceeding is instituted) to the institution or continuance of proceedings…..”, and as discussed above that in facts and circumstances of present case there was a bar under Section 197 Cr.P.C. to proceed against applicant, a police personnel, when alleged offence was committed by him while acting or purporting to act in discharge of official duty, no Court shall take cognizance of such offence except with previous sanction. 21. As discussed above, the act alleged has atleast reasonable connection with official duty of applicant, therefore, without any prior sanction, as required under Section 197 Cr.P.C. criminal proceedings initiated against applicant are erroneous and illegal. Further, documents on record are not refuted by complainant, therefore, in view of judgment passed by Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 , these documents can be considered to secure the ends of justice. 22. The outcome of above discussion is that the criminal proceedings initiated against applicant in Complaint Case No. 3848 of 2010 (Smt. Sairoon vs. Jitendra Nath Singh and others), under Sections 147, 148, 149, 302 IPC as well as impugned orders dated 10.01.2022 passed by Sessions Judge, Shahjahanpur in Criminal Revision No. 58 of 2021 (Madan Pal Singh vs. State of U.P. and another) and summoning order dated 28.09.2010 passed by Chief Judicial Magistrate, Shahjahanpur, are hereby quashed. However, complainant will have liberty to sought sanction as required under Section 197 Cr.P.C., if so advised, to initiated any criminal proceeding against the applicant in accordance with law. 23. The application is accordingly allowed.