Madhya Pradesh High Court
Arun Kumar Solanki vs The State Of Madhya Pradesh on 20 August, 2018
Author: Sheel Nagu
Bench: Sheel Nagu
1
The High Court Of Madhya Pradesh
WP-8615-2013
(RAM SHARAN PRAJAPATI Vs THE STATE OF MADHYA PRADESH)
Gwalior, Dated:20.08.2018
W.P. 8615/2013, W.P.No.1143/14, W.P.No.8538/14,
W.P.No.1754/15, W.P.No.4522/17,
Order
Sheel Nagu J.
Shri Naval Kishore Gupta, Sr. Advocate with Shri Sanjay
K. Sharma, Shri M.P.S. Raghuwanshi, & Shri Prashant
Sharma, Advocates for the petitioners in
W.P.No.1754/15, W.P.No.1143/14, W.P.No.4522/17, W.P.
8615/2013, & W.P.No.8538/14,
Shri Yogesh Singhal, Govt. Advocate for the
respondent/State.
1. Having regard to the similarity in the factual and legal matrix involved in W.P. No. 1143/2014, W.P. No. 8538/2014, W.P. No.1754/2015, W.P. No. 4522/2017 & W.P. No. 8615/2013, the same have been heard analogously and are being disposed of by the following common order.
2. Facts in W.P. No. 8615/2013 are considered for adjudication of all the petitions.
3. The challenge in all these petitions is to the FIR bearing Crime No. 134/2013 registered at P.S. Jigna distt. Datia alleging offences punishable u/S 302, 34, 199, 201, 120-B 342, 468 and 471 IPC which are alleged to be based on the Magisterial inquiry conducted u/S 176(1-A) of Cr.P.C. while inquiring into an allegation of death of one Netram in custody of the police. The petitioners who are police personnel have taken exception to 2 the findings rendered pursuant to the judicial inquiry in para 56 by raising the ground of denial of reasonable opportunity.
4. The facts in nutshell giving rise to the present petition are that on 30.03.2013, a report was made that a dead body is hanging from a tree near Village Palothar which was later identified to be that of Netram Khangar. Inquest was registered and the dead body was subjected to post-mortem on the same day, whereafter the dead body was handed over to the relatives. Smt Phoola Bai, the mother of the deceased after examining the dead body of her son insisted for a second post mortem at a Higher Medical Centre, which was conducted on 01.04.2013 at J.A.H. Group of Hospital, Gwalior which led to post mortem report indicating 19 injuries on the body. Due to variance in the earlier and the subsequent report of post-mortem, the District Magistrate, Datia requested the District Judge, Datia to conduct a judicial inquiry. Chief Judicial Magistrate Distt Datia conducted judicial inquiry in which 55 witnesses were subjected to examination including the mother, two brothers and father of the deceased. The CJM submitted magisterial report on 17.09.2014 which in para 56 prima-facie found death of Netram to have taken place in police custody for which SHO Police Station Jigna Manoj Saream and HCM Harishankar Rathore were found primarily guilty. The report further found that Dr. K.C. Rathore, Dr. A.K. Jain and Dr. R.B. Kurele who conducted the first post-mortem were also guilty of suppressing the factum of anti-mortem injuries on the body of deceased thereby assisting the above said two police personnel in their nefarious intentions. 4.1 After rendering specific finding of guilt against aforesaid two police personnel and the three doctors , the magisterial inquiry report expressed suspicion upon the members of the 3 special police team which included the petitioners in all these petitions to be involved in the offence.
4.2 In view of the above, the findings contained in concluding para 56 of the magisterial inquiry report are of two different kinds. The first finding specifically finds the two police personnel and three doctors named above to be involved in the incident whereas the other part of the finding expresses mere suspicion of involvement of the petitioners owing to the petitioners' being member of Special Police Team constituted to search the whereabouts of the missing son of Smt. Phoola Bai who was later found to be hanging from a tree.
5. The basic thrust of the arguments of learned counsel for the petitioner is that the learned Magistrate while rendering his findings could not have made any adverse comment against the petitioners without hearing them. It is submitted that no opportunity of any kind was afforded to the petitioners to be heard or to cross-examined any of the 55 witnesses whose statements were taken into account while preparing the judicial inquiry report.
6. The State has filed return inter-alia submitting that the FIR was registered solely based on the report of magisterial inquiry against the petitioners who have been found guilty in the said inquiry and investigation for the same was handed over to the CID where it is pending and cannot proceed owing to interim order passed by this Court restraining the functionaries of the State from taking any coercive steps against the petitioners. The State further reveals in the reply that once the Magisterial inquiry finds the petitioners to be prima-facie guilty of the offence of custodial death, registration of offence against petitioners vide impugned FIR is a necessary consequence.
47. So far as the ground of denial of opportunity is concerned, the same has no water to hold. The judicial inquiry conducted by CJM Datia was under Section 176(1-A) Cr.P.C. which provision was inducted into Cr.P.C. by amendment w.e.f. 23.06.2005 conferring power inter-alia upon Judicial Magistrate to conduct an inquiry into death or disappearance of any person while in custody.
7.1 For ready reference and convenience, Sec 176 Cr.P.C. which has been invoked to render the impugned report of the judicial magistrate is reproduced below:
176. Inquiry by Magistrate into cause of death.
(1)When the case is of nature referred to in clause (i) or clause (ii) of sub-section (3) of Section 174], the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of section 174, any Magistrate so empowered may hold an inquiry nto the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
[1A) Where -
(a) any person dies or disappears, or
(b) rape is allleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authroized by the Magistrate or the Court, under this Code in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.] 7.2 A close scrutiny of the terminology used in 176 and 176(1-
A) reveals that Sub-Section (1) confers power on Executive Magistrate to conduct inquiry into the cause of death when 5 death occurs in circumstances as contemplated by Sec 174(3)
(i) or (ii) Cr.P.C.
7.3 While Sub-section (1-A) of Sec 176 Cr.P.C. confers power for conducting an inquiry into the death or disappearance of any person while being in police custody inter-alia upon Judicial Magistrate.
7.4 The marked difference between Sub-section (1) and Sub- section (1-A) of Sec 176 Cr.P.C. is that the expression "inquiry into the cause of death" found in Sub-section (1) is conspicuously missing in Sub section (1-A). This clearly reflects the intention of Legislature of conferring wider power of inquiry upon the Judicial Magistrate by not restricting the field of inquiry merely to the "cause of death", but also two other ancillary aspects.
7.5 In view of the aforesaid marked difference, the Judicial Magistrate while conducting an inquiry u/S 176(1-A) can submit a report not only disclosing the cause of death, but also naming the persons who according to the Judicial Magistrate may be responsible for custodial death.
8. In the instant case, while conducting judicial inquiry CJM, Distt Datia recorded statements of 55 witnesses including the parents and two brothers of the deceased and applied his judicial mind, not only into the cause of death of deceased in police custody, but also upon the aspect of ascertaining the identity of persons responsible for the custodial death. While doing so, the findings rendered in the final paragraph of report have named two separate sets of persons. The first set of such accused persons are those against whom the CJM has found prima-facie evidence of involvement in the custodial death and therefore it can safely be concluded that the said five individuals 6 which includes two police personnel can be subjected to registration of an offence u/S 154 Cr.P.C., followed by an investigation and thereafter trial, if necessary. 8.1 The other set of individuals are the petitioners against whom the extent of involvement alleged in the report is by expressing suspicion on account of petitioners being members of a special police team constituted for searching whereabouts of the missing deceased and also at the relevant point of time some of the petitioners were posted at the police station within whose territorial jurisdiction, the custodial death took place.
9. A close scrutiny of the judicial inquiry report of CJM, Datia reveals that mere suspicion is expressed against the petitioners which cannot per se lead to registration of an offence. The offences alleged against the petitioners in the impugned FIR are of wrongful restrain, causing disappearance of evidence, criminal conspiracy, forgery, murder and making false statement in declaration which is by law receivable as evidence.
10. It is settled principle of law that mere suspicion cannot led to registration of offence unless the information or the judicial report as is the case herein clearly discloses commission of a cognizable offence.
11. The impugned judicial report does not allege commission of cognizable offence as alleged in the impugned FIR against the petitioners. The report merely castes suspicion upon the petitioners of their involvement in the alleged crime on the strength of the petitioners being members of special police force or being posted at the concerned police station at the relevant point of time
12. The course that ought to have been adopted by the State and its functionaries in the case of petitioners against whom 7 mere suspicion was expressed by the CJM, Datia in its report, was to contemplate on the question as to whether their involvement in the incident of custodial death of deceased Netram would attract criminal law or disciplinary proceedings. This exercise does not seem to have been undertaken by the competent authority. The Judicial Magistrate's report has been taken as gospel truth qua the petitioners for lodging the impugned FIR. There is no doubt that the respondents were duty bound to register the FIR against the first set of individuals i.e. Manoj Saream and Harishankar Rathore alongwith the said three doctors namely Dr. K.C. Rathore, Dr. A.K. Jain and Dr. R.B. Kurele against whom the CJM, Datia clearly found prima- facie evidence of commission of cognizable offences. However, since no such finding was recorded against the petitioners and mere suspicion was expressed, the said judicial inquiry report ought not to have been accepted by the respondents as a dictate to lodge the impugned FIR against the petitioners.
13. In view of the above, this Court finds that there is no illegality or impropriety in the magisterial inquiry report P-1 conducted by CJM, distt. Datia dated 17.09.2013, but the impugned FIR lodged against the petitioners deserves interference.
14. Consequently, this petition is disposed of in the following terms:
1. The challenge to the magisterial inquiry report Annexure P-1 submitted by the CJM, distt. Datia dated 17.09.2013 is repelled.
2. The impugned FIR dated 22.10.2013 bearing Crime No. 134/2013 registered at P.S. Jigna Distt. Datia against the petitioner is quashed.8
3. Respondent no.1 or any other competent authority, as the case may be is directed to apply her/his mind on the findings against the petitioners in the magisterial report dated 17.09.2013 and pass a speaking order as to whether petitioners are liable to be proceeded under the criminal law or in disciplinary proceedings within a period of 60 days from the date of receipt of copy of this order and thereafter proceed accordingly.
(Sheel Nagu) Judge 20.08.2018 sh/-
SEHAR HASEEN 2018.08.21 19:16:19 +05'30'