Gujarat High Court
Balvantbhai Prabhatbhai Sonara vs State Of Gujarat on 28 August, 2023
NEUTRAL CITATION
R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 166 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BALVANTBHAI PRABHATBHAI SONARA
Versus
STATE OF GUJARAT
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Appearance:
MR ND NANAVATY, SR. ADVOCATE with MS URVASHI K MEHTA(11469)
for the Applicant(s) No. 1,2,3
MR BHAUMIK DHOLARIYA(7009) for the Respondent(s) No. 2.1
MR LB DABHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
UNSERVED EXPIRED (R) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 28/08/2023
CAV JUDGMENT
PRELUDE:-
[1.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by Page 1 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined the applicants herein - Balvantbhai Prabhatbhai Sonara (accused No.1), Rameshbhai Chhaganbhai Pansuriya (Accused No.2) and Ramjibhai Hamirbhai Miyatra (Accused No.4) to quash and set aside the impugned judgment and order dated 27.12.2017 passed by the learned Judicial Magistrate, First Class, Bhesan, District Junagadh (hereinafter referred to as "learned trial Court") in Criminal Case No.171/2004, whereby the present applicants - original accused have been convicted for the offences punishable under Sections 323, 325 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and sentenced to undergo punishment as detailed hereinbelow:
Name of accused Offence Sentence Amount of
u/Sections Fine (Rs.)
Balvantbhai Prabhatbhai 323 of IPC 1 Year S.I. Rs.1000/-
Sonara (Accused No.1) 325 of IPC 3 Years R.I. Rs.5000/-
Rameshbhai Chhaganbhai 323 of IPC 1 Year S.I. Rs.1000/-
Pansuriya (Accused No.2)
Dadubhai Misribhai Mer Abated
(Accused No.3)
Ramjibhai Hamirbhai 323 of IPC 1 Year S.I. Rs.1000/-
Miyatra (Accused No.4)
The applicants also seek quashing of the judgment dated 25.01.2022 passed by the learned 4 th Additional Sessions Judge, Visavadar, District Junagadh (hereinafter referred to as "learned Appellate Court") in Criminal Appeal No.01/2018 (Visavadar Criminal Appeal No.72/2017 and Junagadh Criminal Appeal No.49/2017), whereby the judgment and order of conviction and sentence dated 27.12.2017 passed by the learned trial Court has Page 2 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined been upheld and confirmed.
The present criminal revision application came to be admitted by order dated 15.02.2022 passed by the coordinate Bench. It appears from the record that vide order dated 24.02.2022, the time to surrender of the applicants granted by the lower Court upto 25.02.2022 was extended from time to time and vide order dated 20.06.2022, said interim relief came to be confirmed till final disposal of the present revision application against which the original complainant preferred Special Leave to Appeal (Cri.) No.11610-11611/2022 before the Hon'ble Supreme Court. The Hon'ble Supreme Court on 27.02.2023 was pleased to pass the following order.
"The present petitions have been filed at the behest of the de-facto complainant with the grievance that even after the Trial Court, in the first instance, convicted the accused/respondent nos.2 to 4 for offence under Section 323 & 325 of IPC and also on dismissal of appeal still either of the accused / respondent nos.2 to 4 has not surrendered and in the revisional jurisdiction the High Court has granted exemption from surrendering and the fact is that either of the respondents has not undergone the judicial custody of a single day so far.
We have heard the learned Counsel for the petitioner and find no reason to interfere in the order(s) impugned.
The Special Leave Petitions are, accordingly, dismissed.
However, leaving the question of law open and we consider it appropriate to direct the High Court to decide the pending revision petition at the earliest but in no case later than six months.
Pending application(s), if any, shall stand disposed of."
[2.0] Upon issuance of Rule, learned APP Mr. L.B. Dabhi appeared for the respondent - State while learned Advocate Mr. Bhaumik Page 3 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined Dholariya appeared for respondent No.2 - original complainant.
FACTUAL MATRIX:-
[3.0] The succinctly stated facts of the prosecution case are as under:
[3.1] The complainant Himmatbhai Dhirajlal Limbani (PW-1) lodged the private complaint against the present applicants before the learned Judicial Magistrate First Class for the offence punishable under Sections 323, 324, 325, 504 and 114 of the IPC, wherein he has stated that, on 14.02.2004, at around 2 to 2.30 p.m., when he was driving the rickshaw, he was intercepted by one Hakabhai and his two brothers viz. Arvind and Hitesh and altercation took place in connection with eve-teasing of daughter of Hakabhai and the complainant was assaulted and threatened by the said persons. Hence, he informed about the incident to his father, uncle and brothers. Hence, they went to Bhesan Police Station to lodge the complaint against accused Hakabhai between 3.30 to 4.00 p.m. [3.2] When they reached to the police station, at that time, accused No.1, as a Police Sub Inspector, was present on duty at Bhesan Police Station and he was informed about the incident and asked to register the complaint. At that time, it had been told, by accused No.1 that, his brother had eve-teased daughter of Hakabhai and Hakabhai has also given application against brother of the complainant and he started using abusive Page 4 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined language qua his brother and he stated that he will not tolerate such behavior. When accused No.1 started to hurl abusive language then the complainant's father and brother had requested not to use abusive language. At that time, accused No.1 got excited and he caught the collar of the complainant and pushed him so, he fell down though accused continued to use abusive language against his mother and sister. Then, accused No.1 summoned accused Nos.2, 3 and 4 and instructed to beat the complainant.
Further, it is alleged that accused No.1 has stated that today he wants to tonsure and punish his brother. Then, forcibly, accused got tonsured head of the complainant, through his brother and after using foul language, accused No.1 kept him in lock-up and started causing atrocity, accused No.1 had made an assault on back side, hands, thigh and head and his head was dashed with the wall. Then, accused Nos.2 and 4 had also blackened his face and compelled him bring to hill and was beaten in public and carried out procession on public road and chowk. At that time, father, brother and uncle of the complainant did request to accused No.1 still however, accused Nos.1, 2 and 4 had once again made assault by stick and kick & fist blows to uncle of the complainant and injuries also caused to him and accused No.1 had also slapped. Then, once again, they took his uncle Kanjibhai to the police station and detained him overnight and thus, the accused persons had caused atrocity and used third degree against the law. Further, it is also alleged that when Page 5 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined father and brother of the complainant were under impression that the accused will release them on bail, they waited upto 6 O' Clock in the evening and at that time, surety Babubhai Raiya was also there and his signature only received by accused No.1 on one paper and once again he used abusive language against them.
[3.3] Further, it is alleged that due to torture and atrocity, complainant and his uncle both had sustained injuries and were admitted in Junagadh Government Hospital and at that time, they had given history to the doctor who was on duty. At that time, the doctor informed that the complaint is against the police officers hence, if he files such complaint then they will be in soup. But the complainant was determined to raise his voice against injustice hence, the complainant addressed applications to the DSP, Junagadh, Collector of Junagadh, DIG and Hon'ble Chief Minister. As they did not pay any heed, the complainant approached the Court.
[3.4] After recording the verification of the complainant on 01.03.2004, matter was kept for inquiry. Then the complainant has produced the witnesses. After recording the evidence of witnesses, learned trial Court pleased to issue process against the accused persons for the offence punishable under Sections 323, 324, 325, 504 and 114 of the IPC.
[3.5] In response to the summons, accused persons appeared before the Court and discharge application came to be filed Page 6 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined which came to be dismissed on 01.06.2006 and charge framed against the accused persons below Exh.72. As accused persons pleaded not guilty, trial proceeded further. During the trial, purshis was filed by the complainant declaring that the complainant does not want to lead any further evidence and whatever evidence is produced during the inquiry be considered. Hence, accordingly, complainant and other witnesses came to be cross-examined by the defence and complainant has also examined the remaining witnesses. During the pendency of trial, the complainant Himmatbhai Dhirajlal Limbani expired on 26.05.2008 and death certificate is produced at Exh.156. On 19.12.2009, the then JMFC, Bhesan had been pleased to acquit the present applicants on the ground that no any sufficient evidence is produced on record by the complainant and no sanction under Section 197 of the CrPC has been obtained as the accused persons are public servants.
[3.6] As the original complainant expired on 26.05.2008 and subsequently, accused persons acquitted by the learned JMFC, father of the original complainant being aggrieved, assailed the order of acquittal by filing Criminal Revision Application No.18/2010 before the learned Sessions Judge, Junagadh. After having heard both the sides, learned Sessions Judge, Junagadh vide its judgment dated 16.02.2016 has been pleased to quash and set aside the order dated 19.12.2009 and remitted matter back to the learned trial Court to decide the matter afresh by giving fullest opportunity to both the sides for placing their Page 7 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined evidence latest by 30.09.2016. Pursuant to the said order, after passage of 12 years 11 months and 25 days, after recording the evidence of witnesses, the learned JMFC, Bhesan has recorded the conviction and passed the order of sentence on 27.02.2017.
[3.7] The said order dated 27.02.2017 came to be challenged by the present applicants before the learned Appellate Court by way of filing Criminal Appeal No.01/2018 (Visavadar Criminal Appeal No.72/2017 and Junagadh Criminal Appeal No.49/2017) and the learned Appellate Court vide its judgment dated 25.01.2022 upheld and confirmed the conviction recorded against the present applicants.
Hence, present criminal revision application.
SUBMISSIONS OF APPLICANTS:-
[4.0] Learned Senior Counsel Mr. N.D. Nanavaty appearing with learned advocate Ms. Urvashi K. Mehta for the applicants has strenuously submitted that, the learned trial Court has committed an error in recording the conviction mainly on the ground that, the order passed by the learned trial Court is nullity as accused persons were acquitted and despite there being no acquittal appeal would lie before the learned Sessions Judge though in a revision application, acquittal set aside and matter be remanded. The said exercise is not permissible under the law and it is against the settled principles of law. In view of the provision of Section 397 read with Sections 401(5) and 399 of the CrPC, revision itself was not maintainable as powers conferred by the Page 8 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined statute under Section 372 or section 378(4) of the CrPC still however, the learned Appellate Court has been pleased to set aside the conviction in revision jurisdiction and pleased to remit back the matter to decide afresh, as order or remand itself was without jurisdiction and was nullity. Hence, subsequent proceeding itself goes. As revision application being not maintainable, the order of the learned revisional Court having no value in the eyes of law.
[4.1] Further, he has submitted that even if for the sake or argument it is accepted that there was consent and accused persons have not taken any objection before revisional Court though consent never confers jurisdiction to the Court and order passed by the Sessions Court was a nullity. To buttress his argument, learned Senior Advocate has relied on the case of A.R. Antulay vs. R.S. Nayak reported in AIR 1984 (SC) 684 and argued that Court cannot confer jurisdiction to try any case of which the Court does not have jurisdiction. Further, he has relied on the decision of the Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation and Anr. vs. Bal Mukund Bairwa reported in (2009) 4 SCC 299 and argued that while statute has conferred the powers then the victim being aggrieved under Section 372 of CrPC or under Section 378(4) of the CrPC, the complainant has to prefer an appeal. The Court has not got inherent power to convert the revision application into an appeal and that too by recording any reason and the Court cannot assume jurisdiction itself and further, relying on the Page 9 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined decision in the case of Ajaykumar @ Bittoo vs. State of Uttarakhand rendered in Criminal Appeal No.88/2021 and in the case of Joseph Stephen and Others vs. Santhanasamy and Others reported in 2022 SCC OnLine SC 90 and argued that revision could not be entertained and as earlier revision itself was not maintainable and order itself was null and void so, the correctness, legality and propriety of the said order is also required to be examined in the case on hand and is required to declare that after passing the earlier order of acquittal, no further proceedings are maintainable and all proceedings must go. Learned Counsel has also relied on the decision of the Hon'ble Supreme Court in the case of Jayendra Vishnu Thakur vs. State of Maharashtra reported in (2007)9 SCC 104 and submitted that as there was inherent lack of jurisdiction, the learned Sessions Judge has turned down the acquittal and therefore, question of consent does not arise read with Sections 378(4) and 401(5) of the CrPC. He has also relied on the decision of the Hon'ble Supreme Court in the case of Chief Justice of Andhra Pradesh & Ors. Vs. L.V.A. Dixitulu & Ors. reported in (1979) 2 SCC 34.
He further argued that, though the contention raised by present accused in Criminal Revision Application No.18/2010 is not considered by the Sessions Court and not applied its mind, which is nothing but miscarriage of justice and order of re-trial is not a jolly ride for the complainant. Solely based on consent, no order of acquittal could be turned down. Hence, proceedings subsequent to the order of remand and conviction and upholding Page 10 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined of the said order in appeal, all are nothing but nullity.
[4.2] He has further argued that in the present case, no sanction under Section 197 of the CrPC has been obtained and without sanction, cognizance is taken. Such cognizance is impermissible under the law and section 161 of the Gujarat Police Act. The order of taking cognizance is pure question of law and it can be raised at any stage. The learned Sessions Judge has committed an error in taking cognizance in absence of any sanction under Section 197 of the CrPC from the competent authority. Even, in the case of exceeding the power in connection of the official duty, sanction is required. It is admitted fact that accused persons were on duty and complainant went to police station to lodge a complaint. Even, assuming for a moment that present accused have exceeded their jurisdiction, though they are entitled to protection under Section 197 of the CrPC, in support, he relied on the decision of Hon'ble Apex Court in the case of D. Devaraja vs Owais Sabeer Hussain reported in (2020)7 SCC 695 A. Sreenivasa Reddy vs. Rakesh Sharma reported in AIR 2023 OnLine SC 615 and submitted that in absence of any sanction against the act performed by accused persons while, they were performing their official duty and there is a reasonable connection between the alleged act and performance of the official duty.
[4.3] Further, he argued that the proceeding of Chapter Case are also on record. The learned Sessions Judge as well as the learned trial Court have to assign reasons qua "nexus" and there should Page 11 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined be nexus with the duty and to explain the word "nexus", he relied on Black's Law Dictionary and Law of Lexicon and stated that "nexus" means 'a connection or link, often a casual one' and nexus means 'bond of connection'. In absence of any proof of nexus, considering the "nexus" with the alleged offence and the duty also depicts that protection under Section 197 of the CrPC is available to accused persons and both the Courts failed to consider the said fact. Accused have performed their duty with utmost care. Hence, order of taking cognizance is bad in law and the said order taking cognizance as confirmed by the learned Appellate Court is not sustainable.
[4.4] He has further argued that even the learned trial Court has committed an error in recording the conviction under Section 325 of the IPC as the Doctor is not examined and alleged fracture in the head is a liner fracture and that too after 29 days of the incident. Dr. Kalpana is also not examined qua the said injury. Hence, prosecution has failed to prove injuries sustained by the victim on the head. Further, he has relied on the decision of the Hon'ble Supreme Court in the case of Devinder Singh vs. State of Punjab reported in (2016) 12 SCC 87 and submitted that as the accused persons were performing their official duty, sanction is required. Even, the Chapter Case is false and fabricated on the face of it. It appears that some unknown persons made an assault on the complainant and victim, he became unconscious and then he lodged the complaint. Considering the said fact and the evidence, after he discharged, he lodged the complaint and then Page 12 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined he received the treatment for head injury. Hence, question of attracting the offence under Section 325 of the IPC does not arise. In absence of any fracture, learned trial Court has recorded the conviction under Section 325 of the IPC. On that count also, interference of this Court is required as finding qua fracture on the head and to convict the accused persons for the offence under Section 325 of the IPC, no evidence is led by the prosecution and thus, finding to that extent is also perverse. Thus, he has requested to allow the present criminal revision application and acquit the accused persons as prosecution has failed to prove the case against the accused persons beyond all reasonable doubts.
[4.5] Finally, he submitted that as at earlier point of time the accused persons were acquitted and valuable right was created in their favor and then without any jurisdiction, the conviction came to be overturned by the learned Sessions Judge and matter was remitted back to the decide afresh. The said exercise is not permissible and has caused great prejudice to the accused persons. Hence, he requested to consider the case of the applicants.
[4.6] Further, he has argued that the learned trial Court has committed an error in recording the evidence. Sections 244 and 245 of the CrPC are not scrupulously followed or complied by the learned trial Court. In absence of any evidence, straightway witness is cross-examined based on his verification statement. In Page 13 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined the eyes of law, there is no evidence of the complainant on record. Whatever evidence is relied on by the learned trial Court is at pre-cognizance stage. Merely, two witnesses are cross- examined by defence and defence has raised any objection is not ground. Merely waiver of objection or acquiescence on the part of the accused never approved proceeding. It is the legal right of the accused to raise such dispute at any stage.
SUBMISSIONS OF APP FOR THE STATE:-
[5.0] Per contra, learned APP Mr. L.B. Dabhi appearing for the respondent - State has vehemently opposed the present application and argued that in a revision application, exercise of re-appreciation of evidence is not permissible. Prime facie, offence is proved. The accused persons being police officers have caused atrocity to the victim and the complainant who went to police station to ventilate their grievance and lodge the complaint and they become victim. Hence, considering the injury and evidence of the eye-witness, no any illegality is committed by the learned Appellate Court as well as the learned trial Court. Insofar as argument of nullity is concerned, learned APP has vehemently submitted that the argument is raised for the first time before this Court. Even, in the memo of revision application, no such plea or ground has been raised or during the entire trial or before the Appellate Court no such issue is raised by the present applicants. Nonetheless, in the earlier revision application, by consent the matter came to be remanded and then accused persons participated in the trial. After, having given Page 14 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined sufficient opportunity to the accused persons to cross-examine the witnesses, the learned trial Court has recorded the conviction and hence, argument of nullity is not sustainable, as under
Section 397 read with Section 399 of the CrPC, Sessions Court has suo moto powers and concurrent jurisdiction and powers under Section 401 of the CrPC under which the learned Sessions Court has examined the propriety, correctness and legality of the earlier order of acquittal. Hence, question of nullity does not arise as the said order of Sessions Judge has not been challenged till date by the accused persons and the said order attained finality.
[5.1] Further, the learned APP has stated that all the witnesses including the independent and injured witnesses have supported the case of prosecution and police officers have not performed their duty. They have exceeded their powers and caused atrocity in the police station. Nonetheless, they have tonsured the head and blackened the face of the victim and then they have carried out procession of the accused. The said act is not protected under Section 197 of the CrPC. Hence, no permission or sanction is required as accused persons have not performed any official act and acted alleged in complaint does not fall under the pretext of official duty in any manner, the applicants have misused their powers. Hence, he has requested to dismiss the present revision application.Page 15 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023
NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined SUBMISSIONS OF RESPONDENT NO.2 - ORI. COMPLAINANT:- [6.0] Per Contra, learned advocate Mr. Bhaumik Dholariya appearing for the original complainant has adopted the arguments of the learned APP and further argued that the question of sanction does not arise as accused persons have not discharged their official duty and they had exceeded their power under the guise of official act. While considering the question of official act or sanction, Court has to consider as to whether the accused is entitled for protection under Section 197 of the CrPC. The sanction is required only when accused persons have performed their official duty. In the present case, the act of causing atrocity or behaving rudely or against the law, does not fall or contemplates under the legal act and safeguard is not provided for such act. Hence, the Court has to examine the "nexus". The learned Appellate Court as well as the learned trial Court both have dealt with said aspect and have also given proper and valid reasons that no sanction is required under Section 197 of the CrPC prior to taking of cognizance and to replenish his submission, he has relied on the decision of the Hon'ble Apex Court in the case of Choudhary Parveen Sultana vs. State of West Bengal reported in (2009) 3 SCC 398 and decision of Kerala High Court in the case of D. Rajgopal and Ors. vs. Ayyappan and Ors., which has been confirmed by the Hon'ble Supreme Court in its decision reported in 2022 Cri.L.J. 2415 and argued that the complainant has filed the complaint against the illegal act and atrocity caused by the accused persons which cannot be said to be part of their official duty and accused are Page 16 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined not entitled to get any advantage of section 197 of the CrPC after committing the mischievous act under the guise of rendering or discharging their official duties. He has further relied on the decision of the Hon'ble Apex Court in the case of A. Sreenivasa Reddy (Supra) and argued that the Court has to examine the "nexus" of the act and there should be reasonable connection with the duty. Herein, present applicants have not only exceeded their duty but they have misused their powers. Hence, benefit of section 197 of the CrPC would not be available to the present applicants.
[6.1] Further, learned advocate for the original complainant has argued that in the present case the complainant as well as the victim and other 11 witnesses including the independent witnesses who witnessed the incident and the procession, have been examined by the prosecution to prove the case of prosecution. Even the person who stood as surety was examined and he has also supported the case of prosecution though victim or complainant were never produced neither before the Court nor before the Executive Magistrate as they were unable to walk. All the formalities were completed in the police station and subsequently, the record was got up for chapter case and for that also, Deputy Mamlatdar is examined and he has also supported the say of complainant that accused persons have tried to forge the government record so as to create false defence. Even Dr. Odedara and Dr. Chavda are also examined and both these Doctors have stated and deposed about the injury sustained by Page 17 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined the victim as well as the complainant and from day one, it is stated that the head of the victim dashed with the wall and he sustained grievous hurt on the head and he was suffering with continuous headache and discharge from the ear. Merely because x-ray of the fracture does not reflect is not a ground to discard the case of prosecution. He submitted that the learned trial Court properly appreciated the evidecen of fracture on head and linear fracture in the head is proved. Thus, section 325 of the IPC is also proved. At the instance of Dr. Odedara the victim was referred to CT Scan and in the report it was noticed that linear fracture is there in the head. The said evidence is admissible and the learned trial Court has properly appreciated the evidence.
He has further argued that earlier order of remand is not challenged by the accused persons and surrendered the jurisdiction have not raised such contention and considering the fact that they waived the objection, question of conversion of revision into appeal does not arise. Now, under the guise of said argument, the complainant could not be left remediless as later on the accused persons have changed their stand. Even, in section 401(4) of the CrPC, word used is "entertain". Here, the question is not of maintainability and considering the said fact, under Sections 399 and 401 read with Section 397 of the CrPC, learned Sessions Judge has power to pass the order in the interest of justice as there is no prejudice to be caused to the present applicants as for the first time, they have raised the said argument during the course of hearing of the present revision. Even, they have not raised the said contention in the revision Page 18 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined memo of present revision application. In this regard, he has relied on the decision of the Hon'ble Supreme Court in the case of Madanraj vs. Jalamchand Lodha and Another reported in AIR 1960 SC 744. Relying on the decision of the Hon'ble Supreme Court in the case of M/S. Godrej Sara Lee Ltd. vs The Excise And Taxation Officer reported in 2023 SCC OnLine 95 (Para 4), he has argued that there is a difference between entertainability and maintainability of the petition. The object of maintainability goes to the root of the matter but the question of entertainability is entirely within the realm of discretion of the Court. It may be, despite a petition being maintainable may not be entertained by a court for many reasons. Hence, the argument canvassed by the learned Senior Counsel is not acceptable qua maintainability of revision application before the learned Sessions Judge.
[6.2] So far as application of section 325 of the IPC is concerned, how the offence under Section 325 of the IPC is made out is properly dealt with by both the Courts below by appreciating the evidence and for that Doctors are also examined and there is no delay as at the instance of Dr. Odedara, CT Scan done and having personal knowledge about the report, he has deposed before the Court. Hence, question to examine the Radiologist also does not arise. Even findings are concurrent and re-appreciation of evidence is not permissible.
ANALYSIS:-
[7.0] Having heard learned counsel appearing for respective Page 19 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined parties, learned Senior Counsel for the applicants has mainly attacked on four grounds, (i) nullity; (ii) sanction; (iii) no application of section 325 of IPC and (iv) non-compliance of provisions of Section 244 & 245 of the CrPC and scanning the evidence produced before the learned trial Court, at the outset it is wroth to mention that it is undisputed and admitted fact that the accused persons are police officers, who were on duty and at that time, the complainant and victim went to the police station. It appears that in order to prove the case, prosecution has examined complainant Himmatbhai Dhirajlal Limbani (PW-1) at Exh.1 and Rameshbhai Nathabhai Limbani (PW-2) at Exh.8, who happens to be the uncle of the complainant and was present at the time of alleged incident. Prosecution has also examined one Babubhai Raiyabhai Bhesaniya (PW-11), who stood as surety, as independent witness. The complainant was examined and is also cross-examined. Then, he passed away. The said witnesses remained consistent and supported the contents of complaint.
NULLITY:-
[7.1] Insofar as the argument canvassed by the learned Counsel for the applicants with regard to nullity is concerned, this Court has given anxious thought to the said argument. It is admitted fact that earlier the accused persons were acquitted and then revision came to be preferred against the said order of acquittal. Learned Senior Counsel for the applicants has submitted that subsequent all proceedings are nullity and applicants have right to challenge such proceedings at any stage such order of nullity Page 20 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined and it is permissible under the law. In view of the above, it is requested that all subsequent proceedings are required to be quashed and set aside or order of de novo trial or fresh proceeding is only a remedy.
As discussed hereinabove and considering the facts of the case and evidence adduced on record, the answer is emphatically in negative. Hence, the authorities relied on by the learned Counsel for the applicants is not helpful to the applicants.
[7.2] As per the say of the applicants, the first order was passed by the learned trial Court on 19.12.2009. Being aggrieved and dissatisfied with the said order, revision came to be filed by father of the complainant as the original complainant expired on 25.12.2008. As his father was not a party, the complainant had preferred the criminal revision application before the learned Sessions Judge as the appeal would lie also before the learned Sessions Judge under Section 372 of the CrPC. Learned counsel has argued that victim has not filed any appeal under Section 378(4) of the CrPC and revision is not maintainable and Sessions Court ought not to have entertained such revision application and pursuant to the said order, after the said order proceeding under challenge were initiated is null and void.
Section 2(w)(a) of the CrPC provides definition of the victim which includes as, "his or her guardian or legal heirs". Said amendment in Section 372 of the CrPC came into force with effect from 31.12.2009 i.e. subsequent to passing of the order of first acquittal which is passed on 19.12.2009. Hence, at the Page 21 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined relevant point of time, section 372 was not brought in the statute. Hence, question of initiating the proceeding under Section 372 of the CrPC does not arise.
[7.3] Learned counsel for the applicants has also stated that the learned Magistrate has committed an error in turning down acquittal that too in revision application but going through the memo of revision application, it clearly transpires that it is clearly stated in paragraph 2 of the judgment delivered on 19.12.2009 that the complainant expired on 26.05.2008 and hence, appeal is required to be preferred under Section 378(4) of the CrPC but due to sad demise of the complainant, in absence of complainant, father of complainant has preferred the revision application. Thus, there was a specific averment about the same and the learned Sessions Judge has considered the said fact and entertained the revision and specifically observed in paragraph No.3 of the order as under:
"3. Both the advocates are heard at length.
However, it appears from the record that 6 witnesses have been examined by the concerned trial court and at the request of the accused, the evidence came to be closed down. A preliminary contention was also raised by Mr. Yadav that this revision is not maintainable but the son of deceased complainant may prefer appeal.
However, it was heavily contended by Mr. Dave that when the matter was pending the complainant died and on the basis of evidence available, the learned trial Judge acquitted all the accused of the charges. It was stated that since the complainant is not alive and the son, being legal heir, has filed this revision application challenging acquittal, appeal Page 22 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined cannot be preferred, therefore, u/s.397 & 399 Cr.P.C., this revision lies before this Court. However, after hearing at length Mr. Yadav also suggested that since 6 witnesses have been examined, rest of the witnesses are yet to be examined and in order to give fullest opportunity to all accused the matter requires to be sent back to the learned trial Court with a direction to give top most priority because the incident took place on 14.02.2004 and this revision is lingering since more than 5 years. Both the advocates orally consented that ends of justice will be served if the trial Court is directed to dispose of the matter within time limit to be given by this Court by way of giving top most priority. The suggestion made at the bar is reasonable. Therefore, by way of quashing the impugned judgment dated 19.12.2009 acquitting the accused, this matter requires to be remanded back to the trial Court."
Going through the order passed in revision application, learned Sessions Judge has not appreciated the evidence or the fact and merely stated that in that revision application applicants have raised objection but subsequently had given the consent and it was suggested that since six witnesses have been examined and rest all the witnesses are yet to be examined. Considering the said fact, fullest opportunity to all accused were given and matter was remanded to the learned trial Court with a direction that revision is lingering since more than 5 years and hence, learned Sessions Judge has remitted back the matter to the learned trial Court to dispose of the matter latest by 30.09.2016.
[7.4] Upon perusal of the order of Criminal Revision Application Page 23 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined No.18/2010, the learned Sessions Judge has only passed an order of remand of matter and has not examined the merits and that too with the consent of the parties. Accused persons also made a statement before the Sessions Court that rest all the witnesses are yet to be examined and in order to give fullest opportunity to all the accused, matter was sent back. Considering the said observations, it appears that at the instance of accused persons and to avail fullest opportunity, matter came to be remanded in the larger interest of justice.
Even otherwise the learned Sessions Judge has not entertain the revision application against any interlocutory order. The order of acquittal was challenged by father of the complainant since he died and challenged arbitrary exercise of judicial discretion as the learned Magistrate ignored material fact, said facts were very foundation for exercising jurisdiction under Section to prevent above process of Court and to secure the ends of justice. Herein, learned Sessions Judge has not turn acquittal into conviction but remit back matter by consent of accused / applicants and hence, there is no prejudice caused to the applicants. Accused persons thereafter participated in the trial and witnesses have been examined after the remand. Thus, no prejudice is caused to the accused persons as they have voluntarily and happily surrendered the jurisdiction and they have taken part as fully opportunity is availed and there is no any breach of principle of natural justice and not behind the back without affording any opportunity of being heard to the accused Page 24 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined persons and therefore, order being passed, the question of nullity does not arise. It also transpires from the record that the accused persons have filed an application Exh.174 wherein they had stated that the evidence of witnesses is recorded then the original complainant expired and after brother of complainant is impleaded and death certificate is produced on record but no further witnesses have been examined by the prosecution and hence, requested that the important witnesses being examined, evidence is over and no witnesses are produced by the prosecution. Hence, they had requested to close the evidence of complainant and as permission under Section 197 of the CrPC is not obtained hence, requested to pass appropriate order as the matter may prolong. The said application is filed on 16.12.2009. The then Magistrate passed an order acquitting the accused persons on 19.12.2009 i.e. within 3 days of filing of the said application. The then learned Magistrate has passed the order below said application on 17.12.2009 and was pleased to acquit the accused persons on 19.12.2009. It also transpires from the rojkam that the said exercise was undertaken by the then learned Magistrate in absence of complainant or his Advocate on 17.12.2009. Then the matter was kept on 17.12.2009 and even on 17.12.2009, arguments of only accused side were heard. No opportunity is availed to the original complainant and said proceedings continued in absence of the complainant. The said fact speaks volumes. In aforesaid background also, being the Sessions Judge, it had jurisdiction to call for the Record & Proceeding and was competent to exercise supervisory revisional Page 25 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined jurisdiction. Thus, on that ground also, it appears that the order passed in revision application is not nullity.
Considering the maxim of ex debito justitiae with a view to do real and substantial justice, Court has to exercise power and should not stifle the legitimate prosecution and considering the principle of act, the Court should not prejudice anyone and the maxim 'actus curiae neminem gravabit' gets squarely applicable. It is the duty of the Court to see that the process of the Court is not abused at the sweet will of the litigant or of any party. In view of the above, no any prejudice is caused to the applicants - accused. Even the learned Sessions Judge has concurrent revisional jurisdiction at par with this Court and can exercise suo moto jurisdiction and call for the R & P of any Court subordinate to it within its jurisdiction. Considering the said fact, the order of learned Sessions Judge cannot be termed to be without jurisdiction. There is a vast difference between lack of jurisdiction and inherent lack of jurisdiction. This is not a case of inherent lack of jurisdiction of the Court. Even, merely, at relevant point of time revision is not converted into criminal appeal. Mere such wrong nomenclature does not adversely affect the right of parties as no parties are deprived of their fundamental rights and they are not denied to defend themselves and behind the back or committing fraud or in violation of the principles of nature justice. Hence, question of being aggrieved with the order at relevant point of time does not arise and both parties have happily surrender the jurisdiction and they have participated in Page 26 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined the proceedings.
[7.5] Now, at this stage, the order of learned trial Court and Sessions Court is not palatable or in favor of present accused is not a ground to raise such dispute under the guise that the present order is nothing but nullity. This Court is of the considered view that merely wrong nomenclature is nothing but procedural lapse as in the case on hand, there is no fraud, no inherent lack of jurisdiction. Considering this aspect, this Court is of considered view that in the present case, question of nullity does not arise as per the law laid down by this Court in the case of Adambhai Sulemanbhai Desai vs. State of Gujarat reported in 2004 (1) GLR 906. In the said decision, it has been held as follows:
"8. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for".
18. In two subsequent decisions the Apex Court has stated the law thus : In the case of State of Kerala Vs. M.K.Kunthikannan Nambiar, (1996) 1 SCC 435:
8. In Halsbury's Laws of England, 4 th Edn., (Re-issue) Vol.1(1) in para 26, p.31, it is stated thus :
'If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees Page 27 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved'."
Even if the procedural lapse is noticed, the same would be irregularity but not nullity. Even if the order is nullity or null and void order, same is required to be challenged within the prescribed period of limitation in the reasonable period to declare the said act of nullity before the competent Court.
[7.6] In the present case, the earlier remand order of revision application is not challenged within the period of limitation before any competent authority. In second round of litigation, present plea is taken at a very belated stage. In this regard, reference is required to be made to the decision in the case of Pradeep S. Wodeyar vs. State of Karnataka reported in AIR 2021 SC 1108 wherein, the Hon'ble Apex Court (3 Judges' Bench) has been pleased to hold that merely because any erroneous order though in a good faith is passed, will not be set aside merely on the ground that the learned Magistrate was not empowered and due to such reason proceeding gets vitiated. To vitiate the proceeding, something more than lack of authority is required. Mere irregularity does not vitiate the proceedings. The accused persons must have to prove "failure of justice". Herein, due to such act, no prejudice is caused to the accused persons. Till date, accused persons have not complained anything about this and due to such act, by entertaining the revision, no Page 28 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined prejudice is caused to accused persons. The said defence is taken only with a view to raise false litigation and to thwart the proceedings. The Hon'ble Apex Court has been pleased to observe in paragraph 41 as under:
"41. Section 465 would also be applicable to challenges to interlocutory orders such as a cognizance order or summons order on the ground of irregularity of procedure. This interpretation is supported by sub-section (2) to Section 465 which states that while determining if the irregularity has occasioned a failure of justice, the Court shall have regard to whether the objection could or should have been raised at an earlier stage in the proceeding. Therefore, the very fact that the statute provides that the Court is to consider if the objection could have been raised earlier, without AIR 1994 SC 1229 PART C any specific mention of the stage of the trial, indicates that the provision covers challenges raised at any stage. The Court according to sub-Section (2) is to determine if the objection was raised at the earliest. C 2.2 Section 465 CrPC and failure of Justice."
The powers of revisional Court read with sections 397, 399 and 401(3)(4)(5), there is a difference between words 'entertainability' and 'maintainability' of the petition. There is no bar to entertain revision application by the learned Sessions Judge. In this regard, reference is required to be made to the decision of Hon'ble Apex Court in the case of K. Arumuga Velaiah v. PR Ramasamy reported in 2023 SCC OnLine (SC) 95. In the present case, revision is entertained by the learned Sessions Judge and he has not converted acquittal into conviction and no any adverse order behind the back of accused persons or without any jurisdiction is passed against the accused and there is no any fraud played on the part of the complainant.
Page 29 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined [7.7] Even as per section 465(1) of the CrPC, the onus of proof is on the accused to show that due to such wrong nomenclature or act, failure of justice has infact occasioned. Herein, accused persons have failed to show that the competent Court or jurisdictional Court has acted prejudicially and due to exercise of such powers, without jurisdiction due to which failure of justice occasioned. In procedural irregularity, accused essentially have to show that exercise of power of particular Court is barred under the Act and even due to such circumstance also, de novo trial is not permissible. Same view is also reiterated by the Hon'ble Supreme Court in the case of State of M.P. vs. Bhooraji and Others reported in (2001)7 SCC 679 wherein it is held that in case of procedural irregularity, de novo trial should not be ordered.
[7.8] Thus, considering the provision of section 465 of the CrPC, any act which it termed as irregularity and if it is curable, such irregularity has not caused any prejudice to the present accused. Further, mere mentioning wrong section or nomenclature in the application is not a ground to invalidate the order. In this regard, reference is required to be made to the decision of Hon'ble Supreme Court in the case of M.T. Khan and others Vs. Government of Andhra Pradesh and others reported in AIR 2004 SC 2934 (Para 16); Challamane Huchha Gowda vs. M.R. Tirumala and Another reported in (2004)1 SCC 453 (Para 10) and Nagappa vs. Y.R.Muralidhar reported in (2008) 5 SCC 633, wherein law has been well settled that mere Page 30 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined non-mentioning of the wrong provision in the pleading is not a ground to reject the plea. Even in the present case, there is no defence that the coram non judice and the order passed by the learned Sessions Judge in criminal revision application was non est in the eyes of law.
SANCTION:-
[8.0] So far as question of sanction under Section 197 of the CrPC is concerned, if we peruse the record, it appears that present applicants - accused had preferred discharge application (Exh.50) wherein specific defence is taken by accused persons that no any permission under Section 197 of the CrPC is sought for and hence, prosecution is not maintainable. The said discharge application came to be submitted on 12.04.2006. After hearing both the parties, the then learned Magistrate was pleased to dismiss the said application and came to the conclusion that the provision of section 197 of the CrPC would not be attracted and act performed by present accused persons does not fall in the purview of official duty under section 197 of the CrPC and hence, as the accused failed to prove that their act was within the official duty, the discharge application came to be dismissed on 01.06.2006. The said order is not challenged by the present applicants.
However, it is pertinent to note that while the first order of acquittal came to be passed at that time, the then learned Magistrate was pleased to record that permission under Section Page 31 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined 197 of the CrPC is not taken and that ground was also considered for acquittal of accused persons. It is pertinent to note that the said order is quashed and set aside in the revision application.
Hence, the order passed below Exh.50 remained in force.
[8.1] It has sufficiently been brought on record that the accused persons were very much on duty on the fateful day whether the accused persons are entitled to get the protection of Section 197 CrPC or not has been dealt with by the learned trial Court as well as by the learned Appellate Court by relying upon the decision of Hon'ble Apex Court in the case of Baijnath Gupta and Others vs. The State of Madhya Pradesh reported in AIR 1966 SC 220 (Para 16), wherein it has been held that it is the equality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. But in the present case, it is true that the accused persons were on duty but the acts of the accused persons to tonsure head, blacken the face and made to touch the toes of the complainant and victim and to conduct their procession in public place are all execrable acts not connected with their official duty.
Page 32 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined [8.2] For the purpose of deciding the issue as to whether the acts performed by the accused persons have any nexus with their duty and whether such acts are required to be protected under Section 197 of the CrPC, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of A. Sreenivasa Reddy (Supra). The Hon'ble Supreme Court in paragraph 59 of the said decision has held as under:
"59. From the aforesaid, it can be said that there can be no thumb rule that in a prosecution before the court of Special Judge, the previous sanction under Section 19 of the PC Act, 1988 would invariably be the only prerequisite. If the offences on the charge of which, the public servant is expected to be put on trial include the offences other than those punishable under the PC Act, 1988 that is to say under the general law (i.e. IPC), the court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages (as the case progresses) as to whether there is a necessity of sanction under Section 197 of the CrPC. There is a material difference between the statutory requirements of Section 19 of the PC Act, 1988 on one hand, and Section 197 of the CrPC, on the other. In the prosecution for the offences exclusively under the PC Act, 1988, sanction is mandatory qua the public servant. In cases under the general penal law against the public servant, the necessity (or otherwise) of sanction under Section 197 of the CrPC depends on the factual aspects. The test in the latter case is of the "nexus" between the act of commission or omission and the official 27 duty of the public servant. To commit an offence punishable under law can never be a part of the official duty of a public servant. It is too simplistic an approach to adopt and to reject the necessity of sanction under Section 197 of the CrPC on such reasoning. The "safe and sure test", is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty. He may have acted "in excess of his duty", but if there is a "reasonable connection" between the impugned act and the performance of the official duty, the protective umbrella of Section 197 of the CrPC cannot be denied, so long as the discharge of official duty is not used as a cloak for illicit acts."Page 33 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023
NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined [8.3] In the present case, test of official duty and nexus of duty is considered. Learned Counsel for the applicants has relied on the word "nexus" for which he has relied on the Black's Law Dictionary and Law of Lexicon, which read as under:
Black's Law Dictionary:-
"NEXUS A connection or link, often a casual one <cigarette packages must inform consumers of the nexus between smoking and lung cancer>. Pl. nexuses; nexus.
2. Roman law, (ital) In very early times, a debtor given in bondage to creditors until the debts have been paid. Pl. nexi. See NEXUM.
The Law Lexicon:-
Nexus. (Lat.) Bond of connection; (the cash nexus, consisting in money payments) (Oxford Dic.) Bond, link or connection."
Going through aforesaid interpretation, the word "nexus" means a link or connection often it may be ca usal one also. In the present case, as alleged in the complaint and as revealed from the evidence, which is on appreciation of evidence, the accused persons have acted while they were on their official duty but they have neither performed their duty nor any direct nexus or link having a direction connection with the alleged offence which is established on record. As the applicants are the responsible Officer or employees in charge of the police station or the member of the police department therefore, the accused persons were supposed to record the complaint and have had to proceed further as per the rules and regulation of their department or rules in other words, in accordance with law Page 34 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined however, they have made an assault and caused atrocity etc. to the victim and the complainant in the police station, which act is not connected with their official duty and such act having no any "nexus" with the official duty.
In view of the above, this Court is of the humble opinion that the authority relied on by the learned Counsel for the applicants in support of the submission that the accused persons have only exceeded in their duty is not sustainable.
[8.4] The official duty is apparent from the work allotted to the accused. In the present case, work was allotted to the accused persons to render their services in accordance with law but not of causing any atrocity or any kind of work which is alleged in the complaint. The object of section 197 of the CrPC is to protect the officer from unnecessary harassment while preparing or acting to act or to perform their official duty. In such case, to protect an honest and bonafide act, sanction is required and for that purpose, public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot be used for protection of illegal or any unauthorized or malicious act. Herein, nowhere it is found that the prosecution has initiated vexatious prosecution. The real question of application of section 197 of the CrPC is wider act committed is directly concerned with the official duty or having any nexus with the official duty.
[8.5] At this stage, reference of the decision of the Kerala High Page 35 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined Court in the case of D. Rajagopal and Ors. (Supra), which has been confirmed by the Hon'ble Supreme Court is also required to be made. In paragraphs 32, 33 and 34 of the said decision, it has been observed and held as under:
"32. From the above narrations, it is indicated that the complainant was brought to the Police Station by the accused not for any legal pursuit or in exercise by the policemen of any of their lawful authority. For the mere reason that the Policemen arrived there in a Departmental vehicle during hours of their official duty, and took the complainant alongwith them to the Police Station, it cannot be said that, they were discharging their official duties. There must be some legal basis while depriving the personal liberty of a person, since it being the mandate of our Constitution under Article 21 that a person's life or liberty shall not only be curtailed or abridged without the support of a procedure established by law. Sanction contemplated under Section 197 Cr.P.C is not meant to protect a public servant dealing with the life or personal liberty of a man out of purview of law or procedure established by law. Therefore, a Policeman has to act within the limits of the legal domain recognized by the Code of Criminal Procedure or any other enactments. Sanction as a protective measure is incorporated in Cr.P.C to save a public servant acting bonafidely without exceeding the jurisdictional limits and also duly exercising the authority recognized by law. What is intended by the incorporation of Section 197 in Cr.P.C is an assurance to a public servant that for whatever things bonafide done by him in the lawful exercise of the authority conferred on him, protection would be afforded to him.
33. Therefore, they cannot take the advantage of Section 197 Cr.P.C after committing mischievous acts under the guise of lawful discharge of official duties as in the case on hand. The fact that the incident was occurred within the Police Station and during the course of discharge of official duty by the Policemen will not legalise it, if it turns out as an exercise of excess power by them for illegal gain. Exercise of power by a public servant in the course of lawful discharge of his official duty, though in excess, will be given protection under Section 197 Cr.P.C.
34. Viewed in the above perspective, the accused in the case on Page 36 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined hand can only be taken to have exercised their authority for committing some illegal acts, under the guise of exercise of lawful discharge of their official duties and therefore are not liable to be afforded with the protection envisaged under Section 197 Cr.P.C. Sanction contemplated under the above provision is not intended to safeguard illegal acts. Therefore, this Court has no hesitation to hold that sanction is absolutely unwarranted in the context for taking cognizance of the offence against the accused and prosecuting them."
In light of above observation in the case on hand, considering the nature of act of accused, sanction is unwarranted.
[8.6] Further, in the case of Choudhary Parveen Sultana (Supra), in paragraph 21, the Hon'ble Supreme Court has observed and held as under:
"21. We have already indicated that we are unable to accept such a view. In our view, the offences complained of cannot be said to part of the duties of the Investigating Officer while investigating an offence alleged to have been committed. It was no part of his duties to threaten the complainant or her husband to withdraw the complaint. In order to apply the bar of Section 197 Cr.P.C. each case has to be considered in its own fact situation in order to arrive at a finding as to whether the protection of Section 197 Cr.P.C. could be given to the public servant. The fact situation in the complaint in this case is such that it does not bring the case within the ambit of Section 197 and the High Court erred in quashing the same as far as the respondent No.2 is concerned. The complaint prima facie makes out offences alleged to have been committed by the respondent No.2 which were not part of his official duties."
[8.7] Reference is also required to be made to the decision of Hon'ble Apex Court in the case of Center for Public Interest Litigation and Another vs. Union of India and Another Page 37 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined reported in AIR 2005 SC 4413 as well as in the case of Romesh Lal Jain vs. Naginder Singh Rana and Another reported in AIR 2006 SC 336, wherein it has been held by the Hon'ble Supreme Court that pre-requisites for grant of sanction under Section 197 CrPC are that act or omission must have been done by the public servant in discharge of his official duty and concept of section 197 does not get immediately attracted on institution of complaint case. Considering aforesaid settled position of law and act on the part of the accused persons, no sanction under Section 197 of the CrPC is required.
[8.8] Even as discussed above, the alleged act of ill-treatment and atrocity to the complainant and victim cannot be said to be any act in discharge of duty conferred by law or under "color of duty" or excess of such duty and such act also cannot be said to be integrally connected or interlinked with an official duty imposed by law. Hence, question does not arise to avail protection under Section 161(1) of the Police Act.
APPLICATION OF SECTION 325 OF THE IPC [9.0] Now, the question which falls for consideration is at to whether any atrocity was caused by the present applicants - accused to the victim and complainant. To prove the said fact, the complainant is examined, who remained consistent and supported the facts of the case and he was beaten by the accused persons and they hurled abusive language and then their procession was carried out in public and thereafter the Page 38 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined complainant and victim both were detained in the lock-up and on next day, they were released on bail. Thereafter, the complainant and victim went to Junagadh Hospital for treatment and they had given the history of assault. They remained in the hospital as indoor patient for six days. Dr. Hareshbhai Parshottambhai Chavda (PW-3) is examined at Exh.10 and Dr. Jayeshbhai Aalabhai Odedara (PW-5) is examined at Exh.21. Both the doctor witnesses have supported the version and case of prosecution. They had an occasion to examine the witness and the complainant, who had sustained injuries as mentioned in the medical certificate produced at Exh.216. Medical certificate for head injury is produced at Exh.217. In the CT Scan of brain, a linear fracture is seen at right frontal bone. The case papers and medical certificates issued by the Civil Hospital, wherein history has been given by the injured, are produced at Exh.232. The case papers are produced at Exhs.221, 222 and 232. Considering the said fact, learned trial Court come to the conclusion that the complainant and victim both have sustained the injury and even Dr. Odedara has deposed about the linear fracture on head and victim himself deposed about the head injury by dashing head with wall and injury on mandible bone and tooth socket has also got loosen and from ear also some discharge was noticed. Considering the said soft tissue injury to tropatic percolation, the learned trial Court has come to the conclusion that the offences under Sections 323 and 325 of the IPC are made out against accused No.1 and 2 and under Section 323 IPC against accused No.2.
[9.1] The learned trial Court as well as the learned Sessions Page 39 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined Judge has also recorded the reason for attraction of section 325 of the IPC. As proved on record, while the complainant and victim came to be arrested, as per the say of accused persons, arrest memo prepared allegedly while they were produced before the Executive Magistrate in connection with Chapter Case No.7/2004, wherein no injury is mentioned. While, subsequently when the complainant was admitted in the hospital, injury marks are noticed. Thus, submission on behalf of the applicants that the victim or complainant had sustained injury prior to their arrest i.e. scuffle with Hakabhai is not acceptable and for that the learned trial Court as well as the learned Appellate Court both have properly appreciated the evidence and relied on the evidence of eye-witnesses produced at Exhs.12, 23, 24, 243, 263 and relied on independent witnesses i.e. PW-46, PW-79 and PW-11 and relied on the documentary evidences of medical certificate produced at Exhs10 and 21. Thus, the argument on behalf of the applicants that merely interested witnesses are examined by the prosecution and the oral evidence of relatives and interested witnesses is required to be discarded is not acceptable, while appreciating evidence the Court shall be careful and evidence of such witnesses cannot be discarded. Further, it is also proved on record that accused No.1 has caused the injury on the head by dashing head with wall and by stick. The complainant has remained consistent in his version from day one. He had also mentioned the said fact in the complaint and stated before the Doctor about head injury as well as in the verification and his evidence also. Merely because he has deposed that no injury of Page 40 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined linear fracture was noticed when he was first time examined by the Doctor and at that time as CT Scan was not conducted and only x-ray of lower limb was taken is not a ground to absolve the accused No.1 from accusation of having committed the offence under Section 325 of the IPC. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Laxman Singh vs. State of Bihar reported in (2021) 9 SCC 191 wherein the Hon'ble Apex Court has been pleased to hold that the production of injury report is not sine qua non for establishing the injury. Invisible injuries even causing bodily pain can be said to be causing "hurt". Herein, head injury was not visible and the complainant was having complaint of constant headache and then in further investigation report of the CT Scan, injury came to be noticed. Thus, on the very same day, the injury was not visible and only because it was not noticed initially, not got done CT Scan is not fatal for the prosecution. Hence, both the learned Courts below have not committed any error in coming to conclusion that the offence under Section 325 of the IPC is made out as for that appropriate reasons are assigned.
[9.2] Further, considering the evidence of the complainant (PW-
1), victim Rameshbhai Limbani (PW-2) are corroborated by the medical evidence given by Dr. Hareshbhai Chavda (PW-3, Exh.10) and Dr. Jayeshbhai Aalabhai Odedara (PW-5, Exh.21). The said evidence is also supported by independent witnesses namely Harsukhbhai Nathabhai Undhad (PW-6, Exh.23), Jaysukhbhai Ravjibhai Vora (PW-7, Exh.24), Vasantbhai Dhirubhai Limbani (PW- 8, Exh.243) and Maganbhai Mohanbhai Savaliya (PW-9, Exh.244).
Page 41 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined All these witnesses have supported the case of prosecution and they are also cross-examined but nothing has come on record which has adversely shaken the credibility of the witnesses. Even ocular evidence prevail over the medical evidence, herein no any contradiction in the evidence, other hand CT Scan i.e. medical evidence supports the version of injured and evidence of injured witness is considered on higher footing.
[9.3] Further, it is also proved on record that the victim and complainant both were present in the police station, and even said fact is also not disputed by the defence and in order to show that the accused persons have tried to show that the chapter case came to be filed and they were produced before the Mamlatdar, who has accepted the surety and victim and the complainant were released on bail. However, in the light of evidence of Babubhai Raiyabhai Bhesaniya (PW-11, Exh.260), who stood as surety as he is also the eye-witness to the incident as he was present at the police station, he has deposed that he has never went to the Mamlatdar Office and he has never executed surety bond before the Mamlatdar. Nonetheless, accused has tried to prove that on 15.02.2004, the victim and complainant both were produced before the Mamlatdar. But in light of the evidence of Kanaksinh Mandanji Parmar (PW-10, Exh.247), the then Deputy Mamlatdar, it emerges that Chapter Case No.7/2004 which indicates the complainant and witness, which are produced at Exhs.248 and 254, said document is proved, is got-up one. As per the so-called production report, the complainant is produced before the Mamlatdar on 14.02.2004 and copy of the production Page 42 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined report is also produced at Exhs.249 and 256 but in both copies of record there is a difference between the writing and the signatures still however, if the said report is for the sake of argument even though, there is difference in the signatures and in the dates respectively 14.02.2004 and 15.02.2004. The bail application tendered by the complainant is produced at Exh.252 wherein, the date produced from 15.02.2004. Going through the record of the chapter case produced by the independent witnesses, the learned trial Court as well as the learned Sessions Judge came to the conclusion that the record is forged and concocted subsequently to create false defence and is nothing but an afterthought defence. Nonetheless, also in the diary maintained by the Mamlatdar, difference in dates are noticed. Going through evidence of another independent witness Devaytbhai Naranbhai Shiyal (PW-13, Exh.268), it appears that then Executive Mamlatdar was not available in the headquarter on the fateful day. He left the headquarter and submitted report on 12.02.2004 and he sought permission to leave the headquarter for 14.02.2004 and 15.02.2004 with retrospective effect. Even, so far as impugned chapter case No.7/2004 is concerned, no any entry made in the register or diary mainained by the Mamlatdar qua disposal of case unlike disposal of other chapter cases and said fact is also noticed by the learned trial Court and relied on the record of the office of Mamlatdar which is produced at Exh.269. Thus, considering the documents and record produced at Exh.248 and 254, learned trial Court come to the conclusion that presence of the complainant and witnesses is Page 43 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined proved in police station on 14.02.2014 and released on bail on 15.02.2004 and during the custody of complainant and witnesses, accused persons were on duty and they have not denied or disputed their presence and independent witnesses have also deposed that during the custody, atrocity was caused to the victim and complainant. All the atrocious acts meted by the present applicants are proved by the prosecution and considering the conduct on the part of the accused persons, the learned trial Court has recorded the conviction and the learned Appellate Court has also cross-checked the findings with the evidence on record and thus, the learned trial Court and learned Appellate Court have not committed any error of law and this Court has not noticed any perversity in the findings and as there are concurrent findings by both the Courts below, interference at the hands of this Court in exercise of revisional jurisdiction is not permissible. Further, the Hon'ble Apex Court in the case of Malkeet Singh Gill vs. State of Chattisgarh reported in (2022) 8 SCC 204 conjointly with the observations made hereinabove as regards there being no any perversity in the impugned judgment and order of the learned trial Court as well as the learned Appellate Court, no interference is required.
COMPLIANCE OF PROVISIONS OF SECTIONS 244 & 245 OF CRPC [10.0] Before proceeding to consider the contention on merit, the scope of the provision contained under Section 245 Cr.P.C needs to be examined. It would be in profit to refer to the Page 44 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined case of Sunil Mehta and another vs. State of Gujarat and another reported in (2013) 9 SCC 209 and Ajoy Ghosh vs. State of Jharkhand reported in (2009) 14 SCC 115. In light of aforesaid authotartive pronouncement the question requires to be considered as to whether deposition of complainant and his witnesses recorded under Chapter XV of the Code before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused under Part B of Chapter XIX of the Code.
[10.1] So far as provision of CrPC are procedural and such procedural law are sub-survient nature of procedural justice and there is need to complete substantial justice and procedural justice to have vital and accurate. The procedural law is not tyrant but servant to a substantive justice. When Court set out to do justice it should not lost sight of the goal and justice should be foremost consideration.
[10.2] The evidence and verification of witnesses is recorded and cross-examination is also taken and the purshis is filed below Exhs.68 and 89 and at that time also, no any objection is taken and after adducing sufficient evidence for framing of the charge and recording verification of the complainant on oath, if he does not want to add further as said verification is on oath and after keeping right reserve to cross examine witnes as purshis filed below Exhs.29, 174 and 186 then he is subsequently cross- examined by the defence then there is prejudice caused to the Page 45 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined accused persons as the complainant does not want to add more and produce any evidence further then witnesses also re-called after the remand also and thus, there is no prejudice caused to the accused herein in any manner. In the present case, compliance of sections 244 and 245 is noticed on record.
[10.3] Even, in the case of Minu Kumari and Anr. vs. State of Bihar reported in (2006)4 SCC 359, it has been held in paragraph 19 as follows:
"19. ....the inherent jurisdiction may be exercised, namely,
(i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist).
While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the Page 46 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice."
[10.4] Learned Senior Counsel has further stated that learned Magistrate has not recorded evidence as per law and straightway considered verification as an evidence and proceeded further though the case was instituted on private complaint i.e. other than police case hence, such evidence is not an evidence which is recorded in absence of accused. Hence, argument canvassed by the learned counsel for the applicants is not sustainable.
[10.5] When the matter is remanded, once again purshis Exh.186 is filed on 22.03.2016 by both the parties wherein the accused persons have personally put their signature alongwith their Advocates and declared that whatever evidence is recorded in earlier proceeding is admitted and shall be binding to both the parties wherein the complainant and four accused have put their signatures. Once they have accepted the recorded evidence and as evidence was recorded in their presence, as discussed above, argument canvassed by the learned Counsel for the applicants that provisions of the CrPC is not followed and prejudice is caused to the accused persons and they have been deprived of Page 47 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined opportunity of hearing, is not sustainable. The complainant is permitted to proceed further in the matter and application Exh.187 is allowed and thereafter, the matter was remitted back and further evidence of witnesses is recorded in light of the order passed in criminal revision application and observations made in paragraph 3 of the order. Learned advocate Mr. Yadav for the defence had submitted before the learned Revisional Court as under:
"...since 6 witnesses have been examined, rest of the witnesses are yet to be examined and in order to give fullest opportunity to all accused the matter requires to be sent back to the learned trial Court with a direction to give top most priority..."
[10.6] Even the accused persons have filed the application Exh.208 on 04.07.2016 to recall the witness for cross- examination and said application is allowed and permission is granted by the learned Magistrate. Hence, question of prejudice being caused to the accused persons does not arise. Thereafter also, the witnesses have been cross-examined by the defence.
[11.0] Considering the aforesaid fact as well as the fact that the said order is passed considering the consent from the learned advocate for the applicants and then applicants have happily surrendered the jurisdiction and proceeded with the matter.
Learned counsel appearing for the applicants has raised opposition qua procedural aspect that no evidence is recorded in the presence of applicants and merely based on verification Page 48 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined learned trial Judge has proceeded further. The said aspect is not applicable because upon perusal of the complaint came to be filed on 01.03.2004 and verification and statement of complainant recorded on oath on the same day and prior to taking of cognizance, the learned trial Court has been pleased to pass an order to adduce or produce further evidence. Pursuant to the said order, the complainant has examined himself one witness and two Doctors when the purshis is filed at Exh.68 on 05.09.2006 wherein the original complainant has disclosed that while evidence of the witnesses came to be recorded by the learned Magistrate for framing of charge, at that time, a purshis was filed by the accused persons below Exh.29 wherein they have stated that they had kept their right reserved to cross- examine the witnesses as case is warrant triable. The said purshis is filed on 01.01.2005. Thus, it appears and may be presumed that the aforesaid evidence of the said witnesses being recorded in presence of accused persons but they did not opt to cross- examine the witnesses at relevant point of time and they had kept their right reserved and evidence is recorded in their presence. Then, they had cross-examined the complaiannt and witnesses also and even earlier also had accepted the evidence vide purshis filed below Exh.174 as discussed in the earlier part of the judgment.
[12.0] Considering the aforesaid fact and law laid down by the Hon'ble Apex Court as regards police atrocity in the case of Arnesh Kumar vs. State of Bihar reported in (2014)8 SCC 273, it is observed and held in Para 5 as under:
Page 49 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined "5. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it.
Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive."
[12.1] In the present case, when the complainant and witnesses went to lodge the complaint, their arrest was made that too in petty offence and they were detained in the lock-up. Not only that, it also reveals from the record that subsequently Chapter Case was registered and record is also fabricated and concocted and said fact is also proved on record. Considering the said fact as well as the law laid down by the Hon'ble Supreme Court in the case of D.K. Basu vs. State of West Bengal reported in AIR 1997 SC 610, it is established on record that accused persons have committed the offence of police atrocity by misusing their powers. In the aforesaid pronouncement, the Hon'ble Supreme Court has given directive principles and explained what is the expectation of society from the police and how police should behave.
[12.2] Even, in the case of custodial torture or police Page 50 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined atrocity, it is the duty of the Court to explain the duty of police. In this regard reference is required to be made to the decision of Hon'ble Supreme Court in the case of Pravat Chandra Mohanty vs. The State Of Odisha reported in (2021)2 SCC (Cri.) 1.
"35. The ratio of the judgment is that in event people holding public office abuse their position, it becomes a matter of great public concern. We fully endorse the above view of the Nagpur High Court.
36. Present is a case where the offence was committed by the in-charge of the Police Station, Purighat, as well as the Senior Inspector, posted at the same Police Station. The Police of State is protector of law and order. The people look forward to the Police to protect their life and property. People go to the Police Station with the hope that their person and property will be protected by the police and injustice and offence committed on them shall be redressed and the guilty be punished. When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern. The beating of a person in the Police Station is the concern for all and causes a sense of fear in the entire society."
In the case on hand, the police has violated the law.
[13.0] Now, so far as authorities relied on by the learned Counsel for the applicants which are considered but prior to dealing with, it is profitable to quote decision of Hon'ble Apex Court in the case of Parasa Raja Manikyala Rao And Anr vs State Of A.P reported in AIR 2004 SC 132, wherein it has been observed and held as under:
"...Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and Page 51 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
Relying on the decision of Hon'ble Supreme Court in the case of Center for Public Interest Litigation and Another (Supra) and Romesh Lal Jain (Supra), it is submitted that said decisions are pertaining to sanction under Section 197 of the CrPC which has been dealt with in earlier part of the judgment. The facts of the decisions relied on by the learned Counsel for the applicants are on different facts than the case on hand and therefore, the said decisions are not of any help to the applicants.
Learned Counsel for the applicants has also relied on the decision dated 26.09.2013 of this Court in the case of Patel Pareshkumar Mafatlal vs. State of Gujarat & Anr. rendered in Special Criminal Application No.2020/2012. The said case pertains to NC case and at relevant point of time, section 372 CrPC was not brought in the statute book and therefore, said decision would not be of any assistance to the applicants.
[13.1] Further, learned Counsel for the applicants has relied on the decision of Hon'ble Apex Court in the case of L.V.A. Dixitulu & Ors. (Supra). As discussed in earlier part of the judgment, there was no inherent lack of jurisdiction of learned Sessions Judge to entertain the revision application and as this Page 52 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined Court come to conclusion that there was no inherent lack of jurisdiction and therefore, said decision is not helpful to the applicants. Further, reliance is also placed on the decision in the case of Jayendra Vishnu Thakur (Supra). As discussed hereinabove, accused persons have filed the purshis twice and happily participated in the proceedings. Hence, the question of presumption to waive their right or estopple does not arise as the Court has to only see that in absence of applicants, proceedings were not conducted and applicants deny opportunity of fair trial and principle of natural justice is violated. Perusing the record, it transpires that the valuable right of the accused are scrupulously followed by the learned Sessions Judge as well as the learned trial Court. Hence, there is no question of any prejudice being caused to the applicants and therefore, said decision will not be helpful to the applicants. Further, so far as the decision relied on by the learned Counsel for the applicants in the case of A.R. Antulay (Supra) is concerned, as discussed in earlier part of judgment, no inherent lack of jurisdiction and no prejudice is caused to the applicants and therefore, said decision would not be of any assistance to the applicants as each case is to be decided on its own merits and facts. The learned Counsel appearing for the applicants has relied on the decision in the case of Bal Mukund Bairwa (2) (Supra); A.R. Antulay (Supra); Chandrabhai K. Bhoir (Supra); Ajay Kumar @ Bittu & Anr. and Joseph Stephen (Supra) in support of his contention with regard to nullity. But in view of the discussion on the point of nullity already made in the earlier part of judgment, said authorities will Page 53 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023 NEUTRAL CITATION R/CR.RA/166/2022 CAV JUDGMENT DATED: 28/08/2023 undefined not be of any help to the applicants.
CONCLUSION:-
[14.0] In wake of above discussion, present criminal revision application stands dismissed. Resultantly, the impugned judgment and order dated 27.12.2017 passed by the learned Judicial Magistrate, First Class, Bhesan, District Junagadh in Criminal Case No.171/2004 as well as the judgment dated 25.01.2022 passed by the learned 4 th Additional Sessions Judge, Visavadar, District Junagadh in Criminal Appeal No.01/2018 (Visavadar Criminal Appeal No.72/2017 and Junagadh Criminal Appeal No.49/2017) are hereby confirmed. Applicants - accused are hereby ordered to surrender before the learned trial Court to serve the sentence imposed upon them by the learned trial Court, within a period of 15 days from today. Rule is hereby discharged.
Sd/-
(HASMUKH D. SUTHAR, J.) Ajay Page 54 of 54 Downloaded on : Sun Sep 17 02:43:19 IST 2023