Delhi District Court
Tarkeshwar Singh vs State on 5 October, 2012
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH DISTRICT) & ASJ/I/C (SOUTH & SOUTHEAST):
SAKET NEW DELHI
Criminal Revision No. 237/2012
ID No.: 02406R0187932012
Tarkeshwar Singh
s/o Sh. Y. P. Singh
R/o C33, PS Kalyanpuri,
Delhi. ..... Petitioner
Versus
State
Through P.P. ..... Respondent
Instituted on: 01.08.2012.
Judgment reserved on: 28.09.2012
Judgment pronounced on : 05.10.2012
J U D G M E N T
1. This criminal revision petition was presented on 01.08.2012, questioning the legality, correctness and propriety of orders dated 10.07.2012 and 24.07.2012, both passed by Ms. Gomati Manocha, Metropolitan Magistrate04, SouthEast on the file of criminal case No. 503/2012 registered on the basis of Final Report under Section 173 Cr.P.C. presented in the said court on 30.04.2012 on conclusion of investigation into FIR No. Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 1 of 40 204/2011 of Police Station Sangam Vihar (hereinafter referred to as "the police station") involving offences punishable under Sections 363/376/109/372/373/34/120B IPC, Sections 4 & 5 of Immoral Traffic (Prevention) Act, and Section 23 of Juvenile Justice Act.
2. It may be mentioned at the out set that the petitioner before this court was the investigating officer (I.O.) of the said FIR, he having been posted during the relevant period as Inspector (Investigation) in the police station. It is under his signatures that the said report under Section 173 Cr.P.C. (charge sheet) was presented in the magisterial court with forwarding endorsement of the Assistant Commissioner of Police (ACP), Ambedkar Nagar, New Delhi. It may be added that the said FIR was subject matter of investigation initially conducted by ASI Karan Singh and SI Harpal Singh. The petitioner was, thus, the final investigating officer for the period 20.02.2012 till filing of charge sheet.
3. Vide order dated 10.07.2012, the Magistrate took cognizance for offences punishable under Section 217 and 221 IPC against the petitioner. Vide order dated 24.07.2012, the Magistrate issued nonbailable warrant (NBW) against the petitioner, Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 2 of 40 besides attachment warrant (A/W) for recovery of Rs. 25,000/ (Twenty five thousand), the said amount representing the value of the bond furnished by him.
4. The petitioner, feeling aggrieved, has come up through the revision petition at hand. The respondentState on notice has appeared but has chosen not to file any formal reply, its stand during the course of hearing being noncommittal.
5. I have heard Sh. Jitender Kumar Jha, advocate for the petitioner and Sh. Irfan Ahmed, Additional Public Prosecutor for the State at length. I have gone through the trial court record.
6. In order to appreciate the contentions that have been raised, it is necessary to trace, albeit briefly, the background facts leading to the impugned orders being passed.
7. As can be gleaned from the record of the criminal case out of which the controversy arises, the FIR was registered on the rukka of ASI Karan Singh, based on complaint made by one Jitender Gupta @ Kallu son of Panna Lal Gupta on 02.06.2011. According to the FIR, thus registered, the first informant alleged that his daughter (hereinafter referred to as "the prosecutrix"), aged 14 years, had gone missing from his house from 08.00 PM of 26.05.2011 and, despite efforts by him, she Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 3 of 40 had remained untraceable. The first informant expressed suspicion that his daughter had been taken out of his lawful guardianship by a boy named Ajay. The FIR was initially registered for investigation into offence under Section 363 IPC. It appears that in the course of investigation, the prosecutrix was traced/recovered. During the investigation, she was taken before Ms. Namrita Aggarwal, Metropolitan Magisterial 09, South who recorded her statement under Section 164 Cr.P.C. on 21.01.2012. It further appears that in the later course of investigation, a need was felt and, therefore, the prosecutrix was again brought before the court of Metropolitan Magistrate (presided over by Ms. Purva Sareen) on 01.02.2012 when her second statement under Section 164 Cr.P.C. was recorded.
8. The investigation is alleged to have brought to light facts indicating not only kidnapping of the prosecutrix but also she having been subjected to rape and forced into prostitution. As per the prosecution case, through the charge sheet presented, the case would involve offences punishable under Sections 363/376/109/372/373/34/120B IPC, Sections 4 & 5 of Immoral Traffic (Prevention) Act, and Section 23 of Juvenile Justice Act, in which the first informant (father of the prosecutrix) Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 4 of 40 himself had been involved. The investigating agency sought trial of a number of persons including the first informant Jitender Gupta, Sandeep Pandey, Pooja Pandey, Aarti, Sallauddin @ Rahul, Rana Kumar Gupta @ Suraj and Mohd. Dilshad @ Bablu @ Raj Kumar. It may be mentioned here that the charge sheet indicated the further investigation to be still under way in as much as efforts to trace another person named Aarti (whose role had come to light) were still being made.
9. On 30.04.2012, when the charge sheet was presented before the Magistrate, SI Harpal Singh, I.O. was present. The learned Magistrate fixed the case for consideration "on the point of cognizance" for 01.05.2012 asking the APP to brief the court for the purpose and directing the IO to remain present.
10.On 01.05.2012, the Magistrate recorded the following order sheet.: "01.05.2012 Heard. File perused. From the material on record primafacie case is made out against the accused. I take cognizance of the offences u/s 363/376(1)/376(2)(g)/372/373/ 34/ 120B IPC and 4 & 5 ITP Act and 23 J.J. Act.
Present: Ld. APP f or the State.
Accused Sandeep Pandey, Puja Pandey, Arti, Salauddin @ Rahul, Rana Kumar Gupta @ Suraj and Mohd. Dilshad @ Raj Kumar produce from judicial custody.
Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 5 of 40
Accused Jitender Gupta is absent.
IO Inspector Tarkeshwar and SI Harpal in person.
Copies supplied to the accused Sandeep Pandey, Puja Pandey, Arti, Salauddin @ Rahul, Rana Kumar Gupta @ Suraj and Mohd. Dilshad @ Raj Kumar.
A perusal of the case file reveals that the accused Geeta has so far not been arrested. The IO has undertaken to arrest the accused and produce before this court on or before the next date of hearing.
Issue summons to the accused Jitender Gupta and notice to his surety for 21.05.2012. Rehnumai on 15.05.2012. IOs are bound down for the next date. Put up for scrutiny of the documents on the date fixed.
Sd/ Gomati Manocha) MM4, SouthEast/01.05.2012."
(emphasis supplied).
11.It is noticeable that besides SI Harpal Singh, the petitioner was also present on 01.05.2012 before the court and submitted the undertaking to arrest "accused Geeta" and produce her before the court on or before the next date of hearing. It is clear from the proceedings recorded that this undertaking had come in the wake of the observations of the Magistrate that the perusal of the case file revealed that "accused Geeta (had) so far not been Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 6 of 40 arrested".
12.On 21.05.2012, the case could not come up for effective proceedings as the file had been requisitioned by the Sessions Court for hearing on the bail application. Therefore, the matter was adjourned to 22.05.2012. The situation remained same on 22.05.2012 and thus, the Magistrate adjourned the matter for further proceedings to 05.06.2012. It may be added here that on both the said dates (i.e. 21.05.2012 and 22.05.2012), neither the petitioner nor SI Harpal Singh were present. But then, in the absence of the case file no effective proceedings could possibly be held on either of the said dates.
13.On 05.06.2012, when the case was taken up again, the petitioner was present. The Magistrate noted that accused Geeta had not been arrested. She recorded that the I.O. (the petitioner) had undertaken to produce her on the next date of hearing. The case was adjourned "for compliance" to 07.06.2012.
14.On 07.06.2012, the situation remained the same. The petitioner sought more time to effect the arrest of accused Geeta. The Magistrate adjourned the case to 21.06.2012.
15.On 21.06.2012, the petitioner did not appear in person, but submitted a reply in which he indicated his efforts to trace the Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 7 of 40 person named Geeta. The learned magistrate recorded her dissatisfaction with the report of the I.O.
16.The material part of the observations of the Magistrate in the order dated 21.06.2012 read as under: ".......................
.......................
In this case, the accused Geeta has been specifically named by the prosecutrix (XXX) in her statement u/s 164 Cr.P.C. She has stated in the statement that on 08.05.2011 her father Jitender Gupta brought a woman called Geeta to their house. Her father asked her to acknowledge Geeta as her mother. The prosecutrix (XXX) has stated that on 26.05.2012, the accused Geeta along with her mother and son took away all the household articles from the house of the prosecutrix. She stated that she had gone to AIIMS hospital to meet Geeta as the mother of Geeta used to work in the AIIMS hospital. She has incriminated Geeta by saying that she was taken to the accused Pooja Pandey by this Geeta who stayed with her at Pooja's Pandey residence for 23 days and then went away. Thereafter, Pooja Pandey forced her into prostitution.
Thus, it is this woman Geeta who had initially taken the prosecutrix to the house of the accused Pooja Pandey without any lawful authority and thereafter the prosecutrix was forced into prostitution. But the IO has neither arrested nor charge sheeted her.
Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 8 of 40
Reply was sought from the IO in which he has stated that he had gone to Safdarjung Hospital to inquire about Geeta but she could not be traced out. It appears that the IO is intentionally shielding the suspect Geeta as he did not make the relevant inquiry at AIIMS hospital where according to the prosecutrix the mother of Geeta was employed. Further, neither did he record the statement of the other co accused regarding the last known address of the accused Geeta nor did he make any attempt to get her sketch prepared at the instance of the accused Pooja Pandey or the prosecutrix (XXX). He could have sought the help or assistance of the prosecutrix to trace out the whereabouts of the accused Geeta and to arrest her, which he did not. It, thus, appears that the IO is intentionally shielding the accused Geeta.
In view of this, issue notice to the IO, Inspector Tarkeshwar no. D2978 u/s 217 and 221 IPC for intentionally disobeying the directions of the law as well as the undertaking given by him in the court in order to intentionally save the accused Geeta as well as for intentionally omitting to apprehend the accused Geeta. Reply to be filed on or before the next date of hearing. Copy of this order be also sent to Commissioner of Police with the directions to get an inquiry initiated against the IO, Inspector Tarkeshwar NO. D2978. Further the inquiry be conducted by any official not posted in the South, SouthEast District.
Be put up for compliance on 30.06.2012.
Sd/ Gomati Manocha) Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 9 of 40 MM4, SE/21.06.2012"
(emphasis supplied).
17. On 30.06.2012, the petitioner did not appear and instead requested exemption by sending a formal request expressing his inability to be physically present on account of he being required to appear in evidence in a case in Karkardooma Courts. The learned Magistrate granted time to the petitioner to file reply on or before 06.07.2012. At the same time, she issued bailable warrants in the sum of Rs. 5,000/ against him for the same date.
18.Pursuant to the directions in the order dated 21.06.2012, whereby Commissioner of Police had been asked to get an inquiry conducted, SI Attar Hussain, from Legal Cell Police Head Quarter appeared before the Magistrate on 30.06.2012 and submitted a letter of DCP (Legal Cell) seeking extension of time for enquiry report to be submitted. The learned Magistrate allowed time for enquiry report to be submitted on 06.07.2012.
19.On 06.07.2012, the petitioner did not appear and instead sent a request referring to he being required to attend another case at Patiala House Courts. The Magistrate recorded dissatisfaction with this conduct referring it as "evasive approach", though Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 10 of 40 granting him last and final opportunity to give his "reply to the show cause notice" on or before 10.07.2012. At the same time, she issued bailable warrant in the sum of Rs. 25,000/ to be executed against the petitioner through DCP(South).
20.Inspector Dharampal Singh of Vigilance Branch of Delhi Police was also present in the court on 06.07.2012 and informed the Magistrate that the inquiry that had been desired had been "entrusted to him". He sought time to complete the inquiry. The learned Magistrate directed him to complete the inquiry and submit his report before her court on or before 10.07.2012. At the same time, she directed the Additional Commissioner of Police (Vigilance) to be summoned for 10.07.2012 to "personally appear and explain the progress in the inquiry".
21.It is pertinent to mention here that in the proceedings on 06.07.2012, SHO Police Station Sangam Vihar was also present with SI Harpal Singh. The SHO informed the court that efforts were being made "to trace out the whereabouts of accused Geeta and so far they have not been successful". In the order, the learned Magistrate indicated that SI Harpal Singh had moved application for issuance of nonbailable warrants at the last known address of accused Geeta. This request was granted Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 11 of 40 and the Magistrate directed the warrant of arrest to be issued against accused Geeta at her last known address to be executed by the IO on or before 20.07.2012.
22.On 10.07.2012, the petitioner was present in person before the Magistrate and filed reply in pursuance of the directions in the order dated 21.06.2012, interalia, submitting that he had filed charge sheet on 01.05.2012 after the same had been duly forwarded by ACP. He stated that the investigation had been made but information could not be gathered regarding the whereabouts of coaccused Geeta. He would deny that he had violated the directions of the court or had had any intention to save accused Geeta by omitting her arrest. He referred to the portrait (sketch) of Geeta having been developed on 09.07.2012. The last said submission was a response with which the Magistrate was not happy as, in her view, this effort had been made after two months of filing of the charge sheet and that too on the "persistence"of the court.
23.During the proceedings on 10.07.2012, the prime accused Jitender (first informant/father of the prosecutrix) submitted through counsel that he had lodged the complaint in the police station regarding involvement of several persons including Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 12 of 40 "accused Geeta" and inspite of that no investigation had been carried out and accused Geeta had not been arrested.
24.The material part of the order sheet that was recorded by the Magistrate on 10.07.2012, which immediately concerns the petitioner, would read as under: "..............................
Perusal of the case file reveals that the IO has not cared to file a proper charge sheet. Accused Geeta has neither been arrested nor has she been charge sheeted by the I.O.
Accused Geeta is the one who had taken the prosecutrix (XXX) from the lawful custody of her father to one Pooja Pandey.
Thereafter, Pooja Pandey along with her husband Sandeep Pandey gang raped her and forced her into prostitution. Prosecutrix (XXX) has also in her statement u/s 164 Cr.P.C. named the accused Geeta. She has also stated that she had gone to meet the accused Geeta at AIIMS Hospital and from there, accused Geeta took her to accused Pooja Pandey. Accused Geeta stayed with her at the residence of Poja Pandey for 23 days and then went away and thereafter the prosecutrix was forced into prostitution by accused Pooja Pandey.
Before filing the charge sheet, IO
neither chose to enquire about the
whereabouts of Geeta from the other co
Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 13 of 40
accused or to get her portrait prepared at the instance of prosecutrix (XXX) or make efforts to trace her out. Despite the prosecutrix having stated in her statement that the accused Geeta was staying with the prosecutrix's father for some time and also lived at AIIMS, no steps were taken by the IO for proclamation regarding the accused at her last known whereabouts. The IO could also have made local inquiries from these places but has chosen not do so so.
After the filing of charge sheet when this defect/irregularity was pointed out to the IO, he undertook to arrest the accused Geeta and produce her before the court.
Thereafter, immense opportunities were given to the IO to arrest and produce the accused Geeta before the court as per his own undertaking. But he failed to do so and in fact he even avoided to turn up before the court. Thereafter, notice u/s 217/221 IPC was issued to him but despite many opportunities, he failed to file reply before this court and kept on making execuses for dilly dallying the matter. Also, B/Ws in sum of Rs.25000/ were issued against Insp Tarkeshwar with one surety in like amount through DCP (South) to secure his presence. It is only thereafter that the reply to the notice has been filed. Perusal of the Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 14 of 40 reply also indicates that there is no cogent and convincing reason given by the IO to neither arrest nor charge sheet the accused Geeta. Being a public servant, he has knowingly disobeyed the directions of law as given by this Court for action against accused Geeta intending thereby to save her from the legal punishment. Also, he has intentionally omitted the apprehend the accused Geeta, which he was liable to do during the course of investigation of this case. After the charge sheet was filed and after many opportunities given to the IO to arrest the accused Geeta, only on the insistence of the court an application was moved by SI Harpal Singh for issuance of warrants of arrest on the last known address of the accused Geeta.
Needless to say, that the disobedience to the directions of law and intentional omission on his part to apprehend accused Geeta cannot, by any stretch of imagination, fall within the ambit of his official dutieis. In view of this, I take cognizance of offence u/s 217/221 IPC committed by the IO Insp Tarkeshwar ............................."
(emphasis supplied).
25. It may be added here that pursuant to the directions to the Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 15 of 40 Commissioner of Police, the inquiry conducted by Inspector Dharampal of Vigilance Branch had also been concluded and report thereupon was filed before the Magistrate on 10.07.2012. This report was perused by the Magistrate. She noted in the order sheet dated 10.07.2012 that the inquiry had brought to light "several lapses" on the part of the IO Inspector Tarkeshwar. The report, however, concluded with the observations that intention on the part of the I.O. to shield accused Geeta could not be inferred. The magistrate rejected this conclusion of the Vigilance inquiry observing that it was improper that the report had been submitted directly in the court, without forwarding comments of the Additional Commissioner of Police (Vigilance), adding that the report could not be relied on as it had been conducted by an official of the same rank as "the erring official", as both of them "may have been batchmates". She rejected the report with the following observations:
"If these lapses are not intentional then the only conclusion can be that even after so many years of experience, the IO in question is incompetent and incapable of performing his duties diligently. The enquiry report is also nothing but an eyewash as it is silent Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 16 of 40 on these aspects."
(emphasis supplied).
26. In the wake of above observations, the Magistrate directed the Additional Commissioner of Police (Vigilance) to be summoned through Commissioner of Police for personal appearance on 24.07.2012 for giving his comments.
27.Vide order dated 10.07.2012, the learned Magistrate committed the main case (arising out of the charge sheet submitted on 30.04.2012 against accused Jitender and others) to the court of Sessions. She directed her Ahalmad "to retain copy of the entire record for the purpose of trial against Inspector Tarkeshwar u/s 217/221 IPC. She further directed the SHO Police Station Sangam Vihar, Inspector Tarkeshwar (the petitioner), Inspector Dharampal and SI Harpal to be bound down to appear in person before her on the next date of hearing, i.e. 24.07.2012.
28.On 24.07.2012, the petitioner through Sh. J. K. Jha, advocate submitted request in writing for exemption from personal appearance on the ground he had to appear at Karkardooma Courts in case FIR No. 410/05 under Section 25 Arms Act Police Station Shakurpur, Delhi. The Magistrate was not satisfied with the request submitted. In her view, the request Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 17 of 40 was nothing but "a ploy to avoid legal proceedings against him". With this observation, she issued NBW and warrant of attachment against the petitioner returnable for 09.08.2012. She directed the amount indicated in the attachment warrant to be recovered by Commissioner of Police from the salary of the petitioner.
29.Sh. J. K. Jha, advocate, the counsel engaged by the petitioner, had also moved an application under Section 191 Cr.P.C. on 24.07.2012. The learned Magistrate observed that though accused might seek transfer of the case before evidence was taken, the matter was still "at an initial stage". She declined to act on the said application stating that the same "shall be disposed off at an appropriate stage".
30.It may be added that the Joint Commissioner of Police (Vigilance) had submitted on 24.07.2012 a letter of request through Asstt. Commissioner of Police (Vigilance) who appeared in the court on her behalf, seeking exemption for her on that day on the ground that she had to appear in evidence in a criminal case at Tis Hazari Courts. The Magistrate granted the request, though also observing that the "increasing trend" on the part of the police officers "to avoid accountability" required to Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 18 of 40 be "deprecated". She called upon the Joint Commissioner of Police to appear in person on the next date of hearing with requisite proof of she having appeared in evidence in Tis Hazari Courts on the said date.
31.The grievances of the petitioner in the revision essentially relate to the directions of the Magistrate to proceed against him on accusations for offences under Section 217/221 IPC and issuance of NBW with attachment warrant for recovery of Rs. 25,000/ from his salary.
32. Section 190 Cr.P.C. deals with the subject of cognizance of the offences by the Magistrate. Subsection (1) is relevant for the present purposes. It reads as under: "190. Cognizance of offences by Magistrates.(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 19 of 40 been committed."
33.It is trite that there are three sources on receipt of information from which occasion arises for a Magistrate to set the criminal law in motion by taking cognizance. One of the said sources is the "complaint" which expression means [Section 2(d)] any allegation made orally or in writing to a Magistrate, with a view to his taking action, that some person whether known or unknown, has committed an offence but does not include a police report.
34.The procedure governing initial action on the complaints to Magistrate is laid down in ChapterXV. If upon perusal of the complaint, the Magistrate is satisfied that it indicates that some person has committed an offence and the complaint has been submitted with a view to his taking action, and upon he deciding to "take cognizance" under Section 190(1)(a), he is required to proceed with examination of the complainant and the witnesses produced by him under Section 200 Cr.P.C. Such inquiry may get extended into a further process under Section 202 Cr.P.C. The preliminary inquiry of a criminal complaint may result in the complaint to be dismissed (under Section 203 Cr.P.C), if no sufficient grounds are shown to exist for further Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 20 of 40 proceeding or may result in process being issued against a person accused (under Section 204 Cr.P.C.), if sufficient grounds have been made out for proceeding in that direction.
35.Upon receipt of the complaint, it is not always incumbent on the Magistrate to take cognizance and proceed with inquiry under Section 200 and 202 Cr.P.C. In the case of cognizable offences, the magistrate may take recourse to his powers under Section 156(3) Cr.P.C. to direct the police to investigate.
36. Ordinarily, it is the obligation of the police to take note of information as to cognizable offences. A statutory duty is cast on the Officer Incharge of the Police Station to reduce to writing every information relating to commission of cognizable offence brought to him (Section 154 Cr.P.C.). After entering into the book the information about the commission of cognizable offence, i.e. the registration of the first information report (the FIR), the police officer is duty bound to proceed to investigate. The powers of investigation are controlled by the provisions contained in Chapter XII Cr.P.C. It is well settled that investigation results eventually in the submission of a final report under Section 173 Cr.P.C. It is this report under Section 173 Cr.P.C. which is the police report on which the Magistrate Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 21 of 40 considers the case to take cognizance under Section 190(1)(b).
37.The Legislature was conscious of the fact that the investigation into an FIR involving cognizable offences may not be complete in the first instance. It may have to be followed up by further investigation and for additional action if further evidence were to be collected. Section 173(8) Cr.P.C, therefore, gives a liberty to the police to undertake further investigation even after submission of the report under Section 173(1) Cr.P.C.
38.It is well settled that investigation of crime is ordinarily the domain of the police. Though judicial magistracy has been conferred with certain role at different stages of investigation, interference in the investigative process is generally expected to be avoided. It does not, however, mean that the police has unbridled power or role during the investigation. It also does not mean that the Magistrate cannot guide the investigation by preforming an advisory role requiring the uncharted territory to be also subjected to probe. But primarily the task of investigation is of the police which must be given the requisite free hand to perform its role as envisaged in law.
39.The case comes within the seisin and domain of the Magistrate upon the report under Section 173 Cr.P.C. being submitted. It is Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 22 of 40 that stage when the Magistrate applies mind to the report and the evidence submitted therewith for deciding as to whether the case is made out for cognizance to be taken under Section 190(1)(b) Cr.P.C. In cases instituted on police report the stage of taking cognizance under Section 190 Cr.P.C. coincides with the stage of issuance of process under Section 204 Cr.P.C. If the material submitted with the report under Section 173 Cr.P.C. makes out a case for cognizance to be taken and the accused to be proceeded against, the Magistrate may issue process in the nature of summons or warrants requiring him to appear and face prosecution.
40.It is well settled that the Magistrate is not bound to accept the conclusions reached by the investigative police as submitted in the report under Section 173 Cr.P.C. He may take cognizance and summon the person mentioned as accused in the report and proceed further. He may or may not accept the report. He may return the case to police for further investigation. He may summon persons other than those sought by the report of the police to be prosecuted, if the evidence submitted with the report under Section 173 Cr.P.C. shows their complicity.
41.From the above perspective, the stage of taking cognizance and Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 23 of 40 consideration for issuance of process in cases instituted on police report under Section 173 Cr.P.C. is of great significance. It is that stage when the Magistrate decides if the case is made out and as to who all would stand summoned as accused to face the prosecution. In case any person is not summoned, at this stage, the occasion to issue process under Section 204 Cr.P.C. would get deferred, in the event of case being subject matter of further investigation, till the submission of supplementary report under Section 173 (8) Cr.P.C, or in other cases, to the stage of Section 319 Cr.P.C. (power to proceed against other persons appearing to be guilty of offence).
42. As mentioned earlier, the Magistrate is also empowered to take cognizance under Section 190 (1)(c) "upon information received from any person other than the police officer, or upon his own knowledge". But then, Section 191 Cr.P.C. expects the Magistrate resorting to such jurisdiction to transfer the case to another magisterial court, subject to discretion of the Chief Metropolitan Magistrate, in case the accused summoned as a consequence "objects to further proceedings before the Magistrate taking cognisance" upon being informed "before any evidence is taken" that such a right exists to have inquiry or Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 24 of 40 trial shifted before another Magistrate.
43.Chapter XIV of Cr.P.C. contains various provisions which put restrictions on the powers of a magisterial court in taking cognisance, foremost amongst which is provided in Section 197 Cr.P.C. Subsection (1) of Section 197 Cr.P.C. needs to be taken note of in this context. It reads as under:
197. Prosecution of Judges and Public Servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government;:
Provided that where the alleged offence was Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 25 of 40 committed by a person referred to in clause
(b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause
(b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.
(emphasis supplied).
44. The petitioner herein is a member of Delhi Police. His service conditions are controlled by the provisions of Delhi Police Act, 1978. As a member of the said police force, he is entitled to certain protections including restrictions against his prosecution. The same is provided in Section 140(1) of Delhi Police Act, which reads as under: "140. Bar to Suits and prosecution. (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 26 of 40 instituted, more than three months after the date of the act complained of :
Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence."
(emphasis supplied).
45. It is plain on the reading of the aforementioned provision that the petitioner cannot be prosecuted for acts done under the colour of duty or authority or in excess of any such duty or authority, except upon "previous sanction of the Administrator". The Administrator referred in the provision quoted above means the Administrator (Lieutenant Governor) of Delhi appointed under Article 239 of the Constitution of India.
46.The judicial proceedings which culminated in the petitioner being made an accused for offences under Section 217 and 221 IPC began with the order dated 01.05.2012 vide which the Magistrate decided, interalia, to take cognizance on the final report under Section 173 Cr.P.C. against Jitender Gupta and others for offences punishable under Sections Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 27 of 40 363/376/109/372/373/34/120B IPC, Sections 4 & 5 of Immoral Traffic (Prevention) Act, and Section 23 of Juvenile Justice Act. In doing so, the learned Magistrate had exercised her powers under Section 190(1)(b) and Section 204 Cr.P.C.
simultaneously in the light of material that had been submitted before her through the final report under Section 173 Cr.P.C. by the petitioner, he being the final investigating officer of the said case. While recording the presence of such accused who had been arrested and produced from judicial custody, the Magistrate issued summons to the prime accused Jitender Gupta, who had been earlier enlarged on bail, to secure his presence.
47.The charge sheet had not sought prosecution of Geeta. Noticeably, in her order dated 01.05.2012, the Magistrate did not order issuance of process under Section 204 Cr.P.C. in the name of Geeta. The Magistrate noted that Geeta had not been arrested till then. It appears that on this observation being made, the petitioner who was present with the other I.O. SI Harpal gave an undertaking that Geeta would be arrested and produced before the court on or before 21.05.2012 which was being fixed as the next date of hearing. The charge sheet had indicated that Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 28 of 40 a supplementary report under Section 173 Cr.P.C. would be filed in the context of another accused Aarti and result of exhibits that had been sent to Forensic Laboratory. This by itself means that the case was still subject matter of further investigation under Section 173(8) Cr.P.C. The final report under Section 173 Cr.P.C. would not dwell on the role of the person named Geeta. The undertaking given by the I.O. to the court on 01.05.2012 in the wake of the Magistrate observing that Geeta had not been arrested till then must be construed as an assurance by the I.O. that further investigation would also cover the said aspect.
48. The power of Police Officer to arrest a person without warrant is governed by the provision contained in Section 41 Cr.P.C. It is clear from the said statutory prescription that a police official may without an order from the Magistrate and without a warrant arrest any person, interalia, against whom "credible information has been received" or "reasonable suspicion exists"
that he has committed cognizable offence punishable with imprisonment for a term which may extend to seven years, subject to certain conditions including satisfaction of the said police official that such arrest is necessary "for proper Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 29 of 40 investigation of the offence" or because the presence of such person before the court, when required, cannot be ensured unless he is arrested. Section 41 Cr.P.C. also permits arrest without warrant or order of Magistrate in cases where "credible information" is received and the police official has reason to believe that the person in question has committed a cognizable offence punishable with imprisonment for a term exceeding seven years.
49.It will not be proper for this court to go into the question as to whether or not complicity of the person named Geeta in the criminal conspiracy or other offences (for which Jitender Gupta and others were sent up for prosecution) is brought out in the report under Section 173 Cr.P.C. on which cognizance was taken by the Magistrate on 01.05.2012. One may proceed on the assumption that the material submitted with the said report did contain evidence making out "sufficient ground for proceeding" against Geeta as well. The moot question, however, is as to whether the omission to cause her arrest before submission of the charge sheet or during subsequent proceedings before the Magistrate on 01.05.2012 amounts to acts constituting offences under Section 217 and 221 IPC. Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 30 of 40
50.The penal clauses for which the petitioner has been made an accused by the Magistrate vide her order dated 10.07.2012 read as under: "217. Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture. Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
221. Intentional omission to apprehend on the part of the public servant bound to apprehend Whoever, being a public servant, legally bound as such public servant to apprehend or to keep in confinement any person charged with or liable to be apprehended for an offence, intentionally omits to apprehend such Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 31 of 40 person, or intentionally suffers such person to escape, or intentionally aids such person in escaping or attempting to escape from such confinement, shall be punished as follows, that is to say: X X X X "
51. Since the petitioner was the investigating police officer in the case from which the present controversy arises, there can be no doubt that his status would be that of a public servant.
52.The essential ingredient for bringing the public servant within a case for offence under Section 217 IPC would be knowing disobedience on his part with "directions of the law as to the way he is to conduct himself", the underlying intent for which must be "to save another person" from legal punishment.
53.For the purpose of offence under Section 221 IPC, a public servant must be one who is "legally bound" in such capacity "to apprehend" a person charged or liable to be apprehended for an offence. In order to constitute this offence, such a public servant must be shown to have "intentionally" omitted to apprehend such person or to have suffered such person to escape.
54.As is clear even from the opening words of Section 41 Cr.P.C. the authority given to police officer to arrest without warrant is Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 32 of 40 nothing but an enabling power. The law uses the expression "may" in the context of power of arrest. It does not say that the police officer is bound to arrest. The power of arrest without warrant may or may not be exercised. Whether or not to arrest is left to the discretion of the police officer. It is not the first case where a police officer has not arrested a suspect. In a large number of cases investigated by the Central Bureau of Investigation, charge sheets are filed without the accused being arrested. In such cases, the investigating police leaves the matter to the discretion of the court at the stage of Section 204 Cr.P.C. Noticeably, even Section 204(1)(b) Cr.P.C. gives a total discretion to the Magistrate, who may issue a summons, as against a warrant of arrest, even in serious cases.
55. But then, it has to be granted that in cases of grave nature, it is generally expected that the investigating police officer would exercise all necessary powers to bring the offender to book and, for such purpose, he must take requisite steps including for ensuring that the suspect is interrogated and evidence as to the circumstances concerning him brought out through such interrogation is collected and made available to the court. It is also expected that the police official will ensure that the identity Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 33 of 40 of all persons whose complicity is brought out is well established so that no such person is able to get away from the legal punishment or escape from proceedings.
56.Assuming that there was sufficient material showing complicity of Geeta in the crime investigated, it can be said that the petitioner should have closely examined her role and brought her to book. But then, the record itself shows that he was investigating the case not of his own but under close supervision of his superiors including Assistant Commissioner of Police (ACP), incharge of the SubDivision. The ACP of SubDivision Abmedkar Nagar is also signatory to the charge sheet. Thus, the responsibility for omission to arrest Geeta at that stage cannot be said to be solely of the petitioner.
57. The Magistrate has not referred in any of her proceedings to any material from which "mens rea" necessary to constitute offence under Section 217 and 221 IPC can be gathered. If one goes by the material available, the petitioner had not even been able to contact the person named Geeta or any one closely associated with her. There is virtually no material showing any design in which the petitioner and the said Geeta together could be assumed to be a party. Thus, the omission on the part of the Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 34 of 40 petitioner to arrest Geeta prior to submission of the charge sheet (on which cognizance was taken on 01.05.2012) cannot result in a conclusion that the petitioner was guilty of offences under Section 217 and 221 IPC.
58.Coming to the proceedings before the Magistrate subsequent to the order recorded on 01.05.2012, it appears the petitioner has been singled out unfairly. On 01.05.2012, the petitioner and SI Harpal (also I.O.) were present. In the context of undertaking given (that Geeta would be arrested and produced in the court on or before 21.05.2012), the Magistrate did not make it clear as to which of the two I.Os. had made the said submission. The subsequent orders show that this undertaking had been submitted only on persistence of the magistrate. The undertaking was repeated on 05.06.2012 by the petitioner. The Magistrate gave him two days time for compliance. On 07.06.2012, the petitioner had sought more time to effect the arrest and matter was adjourned to 21.06.2012. It is on the said adjourned date, i.e. 21.06.2012, that the Magistrate appears to have lost her patience. She proceeded to "issue notice" to the petitioner for offence under Section 217 and 221 IPC.
59.The proceedings recorded by the Magistrate on 21.06.2012 Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 35 of 40 leave much to be desired. It is not made clear in any manner as to what was the nature of the "notice" that had been issued. The subsequent proceedings of 06.07.2012 only clarify that it was intended to be a "show cause notice".
60.The above procedure adopted by the Magistrate is a procedure unknown to criminal law. As already noted, proceedings before the Magistrate generally commence with the submission of the report under Section 173 Cr.P.C. or in the form of inquiry upon complaint under Section 200 and 202 Cr.P.C. In the case at hand, the Magistrate was not acting on "own knowledge" or on information received from any other person. In such situation, there was no occasion for the persons sought to be proceeded against to be put to show cause notice. The Magistrate had ordered inquiry by Police Commissioner. The object of such inquiry was to secure disciplinary action. The Magistrate did not wait for its outcome. She decided to issue show cause, thereby making it clear she was making her own inquiry for penal action. No inquiry except seeking reply to show cause notice was conducted. There is no inquiry worth the name under Sections 200 and 202 Cr.P.C. wherein evidence could be collected against the petitioner. Putting the petitioner Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 36 of 40 to an obligation to show cause, in the facts and circumstances of the case, would in fact be in the teeth of his Fundamental Right against self incrimination as guaranteed by Article 20(3) of Constitution of India and, therefore, wholly impermissible.
61.As mentioned earlier, the Magistrate had full authority in law to issue process against Geeta under Section 204 Cr.P.C. in addition to others, who had been sent up for trial. She did not exercise the said jurisdiction. She instead expected the police to take action. The proceedings subsequent to 01.05.2012 indicate she insisted on the arrest of the said additional person to be effected. Since she had already taken cognizance on the charge sheet, the arrest of Geeta if brought about would be during further investigation by the police under Section 173(8) Cr.P.C. This is why, on the application of SI Harpal Singh submitted on 06.07.2012, (also submitted on insistence of magistrate) she issued NBW against Geeta and handed it over to him for execution returnable on or before 20.07.2012. The report on the said NBW shows the SHO of the police station was also unable to trace Geeta. If that were the result of NBW, it cannot be comprehended as to on what basis the petitioner can be accused of intentional omission to arrest Geeta.
Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 37 of 40
62.Undoubtedly, the petitioner gave undertaking to the Magistrate on some dates that he would arrest Geeta and produce her before the court. But in absence of any material showing deliberate omission, mere failure to arrest Geeta, cannot result in his prosecution for aforementioned offences. This failure cannot also be treated as intentional disobedience to the directions of law.
63.There is one more aspect of the case which needs to be highlighted. While issuing show cause notice to the petitioner as per order dated 21.06.2012, the Magistrate had simultaneously directed the Police Commissioner to get an inquiry initiated against the petitioner. Presumably, as observed earlier, this would be an inquiry initiated to lead to departmental/disciplinary action. It definitely was not meant to be inquiry to aid and assist the judicial inquiry upon which the Magistrate had embarked. The inquiry for purposes of action under the Conduct Rules would entail action which pertains to the domain and discretion of the authority having administrative control. The inquiry suggested by the learned Magistrate was entrusted by the Commissioner of Police to the vigilance branch. It was conducted through Inspector Vigilance. A copy Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 38 of 40 of the said report was submitted by the said Inspector before the Magistrate on 10.07.2012. Though the report does take note of some lapses, it would not substantiate the impression of the Magistrate about the omissions to be intentional. With such report having come, the main case against other accused having ripened for committal and the matter concerning Geeta being subject matter of further investigation under Section 173(8) Cr.P.C. the chapter concerning conduct rules did not require any further action on the part of the Magistrate. Yet, the Magistrate seems to have persisted with it following up by not only recording adverse observations but also summoning the Additional Commissioner of Police (Vigilance). It was most unfair to question the credibility of the report on the basis of speculation that the enquiry officer and the petitioner may have been batch mates at some point of time. The report was filed directly before her pursuant to her own directions.
64.Even if it were to be assumed that the acts of omission or commission on the part of the petitioner attract penal clauses under Section 217 and 221 IPC, they would remain relatable to, and have reasonable connection or nexus with the official duty of the petitioner as a police officer or public servant within the Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 39 of 40 meaning of Section 140 Delhi Police Act and Section 197 Cr.P.C. Cognizance of such offences, assuming such offences had been committed, was not permissible without prior sanction of the competent authority under the said statutory provisions. [State of Maharashtra Vs. Atma Ram (AIR 1966 SC 1786) and P. Arulswami Vs. State of Madras (AIR 1967 SC 776)].
65. For the foregoing reasons, the petition stands allowed. The impugned order directing the cognizance of offences under Sections 217 and 221 IPC being taken and insisting on the appearance of the petitioner as accused and also consequent directions issued by the learned Magistrate are set aside.
66.Lest there be any doubts entertained in this regard, it is made clear that nothing in this order shall be construed or come in the way of further investigation including with regard to the role of the person named Geeta.
67.The trial court record along with copy of this judgment be sent back.
68.File of revision petition be consigned to Record Room. Announced in open Court today on this 05th day of October , 2012 (R.K. GAUBA) ASJ/I/C (South & South East) Saket/New Delhi Crl Rev. No. 237/12 Tarkeshwar Singh Vs. State Page 40 of 40