Karnataka High Court
State Of Karnataka, Paper Town Police ... vs Sheshadri Shetty And Ors. on 14 October, 2003
Equivalent citations: 2005CRILJ377, ILR2004KAR218, 2005 CRI. L. J. 377, 2004 AIR - KANT. H. C. R. 3449, (2004) ILR (KANT) (1) 218, (2005) 1 RECCRIR 596, (2004) 2 ALLCRILR 353
Author: K. Ramanna
Bench: K. Ramanna
JUDGMENT Saldanha, J.
1. We have heard the learned Government Pleader as also the learned Counsel who represents the respondents - accused. The facts of this case are rather distressing in so far as the prosecution alleges that pursuant to some communal disturbances in the town of Bhadravathi, on the evening of 21.8.1994 at about 8 P.M., a mob of approximately 200 to 300 persons are alleged to have decided to target the grocery store of one Mohammed Ibrahim. The police were informed about this and they rushed to the spot but it was not possible for them to avert the disaster because it does appear from the record that the mob had already set fire to the premises using kerosene, petrol and other inflammables. After warning the persons present there, the police opened fire in the air whereupon the entire mob dispersed and the persons are alleged to have run away. According to the prosecution, some of the participants were known to the police constables and to P.W. 8 who was the Sub-Inspector of Police. These person were therefore recognised by them as being participants and they came to be arrested and charge sheeted by the police for offences punishable under Sections 143, 147, 148, 427, 436 r/w 149 IPC. The substratum of the prosecution allegation is more or less evident from the fact that accused No. 1 is referred to as a B.J. P. activist and it does appear that the attack was communally motivated because the owner of the shop Mohammed Ibrahim belonged to another community. What happened was not only unfortunate but downright despicable because the victim was running a small grocery shop, that was obviously the source of his livelihood and merely because his name, religion or community were unacceptable is really no ground on which he could have been subjected to what happened. The burning down of his shop could have really meant the end of the world for Ibrahim and his family and it does appear from the fact that he was not available at the time of the trial, that he must have fled the place fearing for his life. We refer to this aspect from the limited point of view of emphasising the seriousness of the situation and the learned Government Pleader was quite right when he pointed out that if instances of this type go unpunished, wrong signals would emerge and the sad possibility of repetitions only gets heightened. The fifteen accused in this case have been acquitted by the Trial Court because a conviction was legally unsustainable and, having regard to the overtones of the whole incident the State has filed an appeal assailing the Order of acquittal. We have heard the learned Counsel on both sides, both on facts and on law and we have also done a total review of the record which is rather limited.
2. The only witnesses who have not turned hostile and whose evidence has survived are all witnesses belonging to the police department. That is perfectly understandable and there is no reason why in a case of the present type a conviction cannot be based on the evidence of these witnesses. For one thing, being members of the police force the normal charge that the witnesses are interested or that the witnesses are related would not arise. The prosecution evidence would therefore have to be evaluated on face value, which we have done and the short question is as to whether the Order of acquittal recorded by the Trial Court needs to be interfered with.
3. One of the basic legal infirmities which have been held against the prosecution by the Trial Court emanates from the fact that PW.8. H. Manjappa who was the Sub-Inspector of Police at the relevant time had gone to the spot and being also the Investigating Officer has recorded his own complaint, treated it as the FIR and has proceeded with the investigation. The legal complications that emanate from a situation of this type have been highlighted by the Supreme Court in the case of MEGHA SINGH v. STATE OF HARYANA, 1995 Crl.Law Journal page 3988 wherein the Investigating Officer was the very person who had lodged the compliant which was treated as the FIR and the starting point of the investigation. The Supreme Court disapproved of the procedure and undoubtedly, there was very valid reason for it because the Supreme Court has indicated that where the Investigating Officer happens to be the complainant that it would be perhaps difficult to uphold the position that the investigation was impartial. An impartial investigation is the essential bed-rock for any successful prosecution. Undoubtedly, this situation was very very unusual and was something that rarely ever happens in criminal cases but the Supreme Court was quick to point out that this is a legal infirmity or an impediment. This is precisely the plea that was put forward before the Trial Court. The Trial Court upheld the plea and it was one of the principal grounds on which the accused have been acquitted.
4. The learned Government Pleader submitted that in law nobody could question the correctness of the Supreme Court decision or for that matter the validity of the principle which is a principle of ethical jurisprudence that has been laid down but he advances an entirely different argument namely that in the present instance the prosecution relies on the evidence of four other witnesses who are eye witnesses and his submission is that the prosecution case can be sustained dehors the evidence of P.W. 8. His submission is that even if we virtually amputate this part of the record namely, the evidence of P.W. 8 that the accused can still be convicted on the basis of the remaining evidence.
5. Smt. Nesargi, learned Counsel who represents the accused was very quick to point out to us that the spirit of the principle laid down by the Supreme Court was not that the Court would have to disregard the evidence of the Investigating Officer but it is her submission that the principle is much wider in so far as where the complainant happens to be the Investigating Officer and where he proceeds with the investigation that according to her, the entire investigation would be vitiated in law. This is precisely the view which has been upheld by the Trial Court and the short question is as to whether the investigation can be said to have been vitiated or whether the learned Government Pleader is right when he points out that the Court will have to disregard only the evidence of P.W. 8.
6. For purposes of resolving this rather complex legal issue, we have carefully applied our minds to the principle underlying the Supreme Court decision. The rule of fairness which is the bed-rock of criminal investigations pre-supposes impartiality and starting from this premise what emerges is that where the Investigating Officer is the complainant, he is offending the principle of impartiality as far as the quality of the investigation is concerned. Though the Government Pleader has tried to salvage the position by contending that the Court should totally disregard the evidence of the I.O. P.W. 8 and examine the question as to whether the prosecution case is established on the basis of the remaining evidence, we need to point out that this procedure would not pass the legal test of fairness. The reason for this is because in his capacity as the Investigating Officer, P.W. 8 has not only given evidence at the trial but P.W. 8 is really the main architect of the prosecution cases. Everything that P.W. 8 has done right from the recording of evidence to the drawing up of panchanamas and the like would be hit by the lurking suspicion that if he is the complainant in the cases he may not be acting impartially. It is precisely this underlying principle which effects the quality of the whole of the prosecution case because P.W./ 8 as the Investigating Officer is the architect of that edifice. Therefore, though initially it did appear to us that the submission canvassed by Smt. Nesargi was not on the strong side, on a total review of the legal position we find that the learned Counsel was right in advancing the submission because the principle laid down in Megha Singh's Case would virtually render the investigation as tainted and if this is the position, it is virtually the end of the prosecution case.
7. We do not in the least attribute any motive or for that matter negligence to P.W. 8 because in the situation in which he was placed, he obviously thought that procedurally there was nothing wrong in his registering his own complaint because he had visited the scene of offence and had personal knowledge of what had happened and ordinarily he was more than competent to be the complainant. Had there been an opportunity of referring the matter for legal opinion at that point of time, it would have been pointed out to him that he should stick to his role as a witness or an eye witness and depute some other officer to do the investigation because otherwise, in his capacity as complainant, eye witness and then Investigating Officer he would be damaging the prosecution case. One of the submissions canvassed by the learned Government Pleader was that a scrutiny of the present investigation will indicate that there is not the slightest hint of bias or partiality and therefore the Court should not bend over backwards and apply the principle in a vacuum and virtually shoot down the prosecution case. This argument is not altogether correct because the principles of ethical jurisprudence hold good irrespective of what the consequences are. Where the law prescribes a prohibition to the Investigating Officer being the complainant, such as a situation in which the law would preclude a prosecutor from being a witness at a trial or a situation in which where the prosecutor is absent, the Presiding Officer takes over the role of the prosecutor. The law prescribes a certain bar for valid reasons, there can be no compromise and if the bar is transgressed then the consequences are automatic. It would be too dangerous to accept the argument that the Court should still test the material to find out whether there are traces of bias. We need to illustrate that bias may not always be apparent in an investigation. It could depend on who is examined as a witness and who is deliberately not examined, what was recovered and what was not recovered, what is the material gathered and what is the material placed before the Court and it is not for the Court to do this dissection process but the correct principle would be to enforce the law in all its fairness.
8. In view of the aforesaid position, it is hardly necessary for us to examine the quality of the evidence that emerges from the remaining witnesses. We have however done our duty in examining this material and what we need to point out is that undoubtedly these witnesses have named some of the accused as persons who were part of the mob. The evidence generally indicates that the offence had been complete or in other words that the shop had been set on fire before the police came there and consequently, even if the presence of some persons is established that culpability is not, for the simple reason that there is nothing from which the Court can conclusively hold that these were the very persons who were responsible for the offences on that evening prior to the time when the police came there.
9. What also emerges from the cumulative evidence of these four witnesses is that out of the fifteen accused it is only nine of them whose presence has been referred to and one does not really know on what basis the remaining six of them have been charge sheeted. Secondly, even with regard to the accused who have been identified by the witnesses, there is a serious infirmity in so far as it is only mentioned that they were seen as part of the mob. It is only a small number of participants, as always happens, who had set the shop on fire and committed the offences on that evening and there is not a single witness who avers to the fact that any of the accused who have been identified were guilty of any overt act that could be construed as an offence. We are conscious of the fact that in cases of unlawful assembly and rioting there are instances when mere presence as part of a mob that has committed the criminal offences would be sufficient to fasten the liability of an accused but this is not one such instance because the prosecution evidence cumulatively is not good enough to establish that it was these very persons who committed the offences on that evening. Again, the estimates of the number of persons vary from 150 to 300 and it would be a little hazardous in the absence of specific evidence attributing overtacts or motive, to pick out a few persons from among several hundreds and convict them on the ground that it was they who reflected the common objective of the mob on that evening.
10. As we indicated at the beginning of the judgment, the incident is a very very serious one and the overtones are equally grave. It was therefore doubly important for us that the record be evaluated virtually with a fine tooth comb for purposes of deciding as to whether the prosecution has succeeded in establishing as to who was responsible for the atrocities and where the prosecution has succeeded in proving within the framework of the law that they are liable to be punished. Unfortunately, the answer to both these questions is in the negative.
11. Having regard to the aforesaid position, the appeal fails and stands dismissed. Bail bonds of the accused to stand cancelled.
12. Before parting with this judgment, we need to remind the prosecuting authorities that the error that has occurred in the present case ought never to be repeated and the Director General of Police still bring it to the notice of all Investigating Officers in the state that there is a legal bar to an Investigating Officer functioning in the dual capacity of the complainant also and that this error should not be repeated because it would virtually vitiate even an otherwise reasonably good investigation. Secondly, we do feel that when atrocities of the present type take place that a highly specialised, intelligent and above all honest professional investigation be undertaken. It is not difficult if there is a genuine will to get to the root of the atrocity to find out the real culprits and ensure that they are brought to book. We only quote the instances of some of the first class investigations done by the Bombay Police at the time of the Samyukta Maharashtra Riots when the police had even obtained press photographs, blown them up and from these, produced unimpeachable evidence of persons setting public property on fire and committing other serious criminal offences where the police had done a credible and unimpeachable investigation and where the law was able to bring to book almost everyone of the culprits. The Registrar General to forward a copy of this judgment to the Director General of Police for appropriate action.