Punjab-Haryana High Court
Surjeet Singh And Anr. vs Jit Singh on 19 December, 1997
Equivalent citations: 1998CRILJ3562
Author: K.S. Kumaran
Bench: K.S. Kumaran
ORDER K.S. Kumaran, J.
1. Petitioners-Surject Singh (a Sub Inspector of police) and Jagdish Chander (an Inspector of Police) have by means of this petition, approached this Court under Section 482, Cr.P.C. for quashing the Order for framing the charge (annexure p-4), the charges framed (annexure P-5), and also and Order dated 5-9-1997 (annexure P-6), by which the learned Additional Sessions Judge, Jagadhri dismissed the application filed by the petitioners Order for dismissal of the complaint on the ground that the complainant had not obtained sanction to prosecute the petitioners under Section 197, Cr.P.C.
2. The counsel for the petitioners was heard at the motion stage. The facts which are essential for our present purpose are as follows :-
3. Kuldip Singh (since deceased) was the brother of the complainant-Jit Singh. Jit Singh filed a complaint before the Judicial Magistrate Ist Class, Jagadhri (Criminal Complaint No. 19/2 of 1-3-1989) against (1) Vijender Singh, Sub Inspector, (2) Surjeet Singh, A.S.I. (Ist petitioner herein), (3) Jagdish Singh A.S.I, (second petitioner herein) and (4) Sahab Singh, Head Constable under Sections 302, 343, 511, 120-B and 34, IPC. In his complaint, among other things, Jit Singh stated that Kuldip Singh who was attested on 8-12-1988, died in the illegal custody of the police. According to him, the said Kuldip Singh, in view of some family dispute, left his village Dera Salampur on 6-12-1988 and the complainant started searching for him. On 15-12-1988, ASI - Kewal Krishan, Incharge of Police Post, Barara, along with certain constables came and called the complainant and also the Sarpanch of the village on the stating that he was summoned by the S.H.O., Police Station, Mullana. The complainant also alleged that he went and met the S.H.O., Police Station, Mulana and from there to the office of the D.S.P., Jagadhri. On his direction, the complainant Order were taken to Civil Hospital, Yamuna Nagar. According to the complainant, he found the dead-body of his brother-Kuldip Singh at the said hospital, but, when he tried to enquire about the cause of death, the police personnel who were present in large number, as a result of the conspiracy, got the signature of the complainant under pressure on some papers, and thereafter took the dead-body forcibly to the village along with 100 police personnel including some officials. According to the complainant, he was not even allowed to talk with anybody or even move out anywhere. It has been further alleged that nobody was allowed to come into or go out of the village, and the dead-body was cremated after sunset in spite of protest.
4. The complainant has further alleged that he made enquiries regarding the cause of death of Kuldip Singh and came to know that the deceased was arrested by the police from Village Mande Bari on 8-12-1988. According to the complainant, the Sarpanch of the said village and other villagers gave in writing that Kuldip Singh was caught by the villagers of the said village and was handed over to the police of Police Station City, Yamuna Nagar headed by S.I. - Vijender Singh. According to the complainant, Kuldip Singh was kept in illegal custody by the police of Police Station City - Yamuna Nagar and was tortured by S.I. - Vijender Singh by applying third degree methods. It has further been alleged that Kuldip Singh was then handed over to the custody of CIA Staff, Jagadhri, who showed the formal arrest of the deceased on 14-12-1988 at 6.30 a.m. in a false case in FIR No. 124 of 1988 of Police Station Sadar - Yamuna Nagar under Sections 457 and 380, IPC. Thereafter the police of CIA Staff, Jagadhri showed the death of deceased -ant, the police record Kuldip Singh in police custody during investigation on 14-12-1988. According to the complainant, the police record was manipulated and false entries were made regarding the arrest as well ,as the death of the deceased. According to the complainant, as a result of the criminal conspiracy of the accused, the said Kuldip Singh was tortured while in custody and was killed. The complainant has even alleged that the relatives were not called till after the post-mortem examination. Therefore, the complainant filed the said complaint alleging that his attempt to knock at the doors of several other quarters did not yield fruit.
5. The learned Magistrate recorded the preliminary evidence of the witnesses. Taking into consideration the materials placed before him he summoned the petitioners Order. The petitioners and their co-accused filed revisions against the summoning Order before the learned Additional Sessions Judge, Jagadhri but the same was dismissed on 27-7-1981. Criminal Miscellaneous No, 11313-M of 1991 filed before this Court was a|so dismissed by the Court with the observation that the petitioners-accused were free to raise all the pleas at the time of the consideration of the case for framing of charges. The learned Additional Sessions Judge, before whom the case was pending, framed charges under Sections 302 and 343 read with Section 34, IPC (the Order directing the framing of the charge is annexure P-4 and the actual charges framed against the petitioners Order are annexure P-5).
6. The petitioners filed criminal revision No. 542 of 1997 questioning the framing of the charges against them and this Court dismissed the application as premature but gave the petitioners liberty to move an application before the trial Court about the maintainability of the complaint on the ground that sanction as contemplated under Section 197, Cr.P.C. had not been obtained by the complainant. Accordingly, the petitioners filed an application before the Additional Sessions Judge, Jagadhri for dismissal of the complaint for want of sanction as per Section 197, Cr.P.C. The learned Additional Sessions Judge who heard this application, dismissed the same by his Order dated 5-9-1997 observing that the petitioners did not establish that they can torture or use third degree methods during the course of their investigation, that if they had such a power, then if some excess had been committed, sanction for prosecution would be necessary, whereas it has not been shown that the use of third degree methods is permissible during interrogation of the accused before them and that the present petitioners' contention that even if it is assumed that they had committed some excess during interrogation, sanction for prosecution is necessary, was not acceptable.
7. Therefore, the present petitioners have approached this Court for quashing the abovesaid Orders for framing the charges (annexure P-4) the charges framed (annexure P-5) and also the Order dismissing the abovesaid application filed by the petitioners (annexure P-6).
8. The contention of the learned counsel for the petitioners is that the provisions of Section 197, Cr.P.C. are attracted to the facts of the present case since the petitioners and their co accused are police, officers. According to him, even according to the complainant; Kuldip Singh was in the custody; of the police in a case under Sections 380/457, IPC, that he was arrested in suspicious circumstances by the residents of mande Bari Phusgarh and these circumstances along with medical evidence render it necessary to get sanction for prosecution under Section, 197, Cr.P.C. Learned counsel for the petitioners con- that at any rate, the charge under Section 302, IPC is unsustainable in view of the evidence of Dr. Mahavir Goel (PW-3) that Kuldip Singh died of heart-attack.
9. Now, we have to see whether these, contentions put forth by the learned counsel for the petitioners can be accepted. Before the learned Magistrate, the complainant examined certain witnesses apart from himself. The complainant deposed on the lines of his complaint. Dharam pal one of the witnesses stated that on 8-12-1988, he along with other residents of the village caught hold of Kuldip Singh in suspicious circumstances from his sugarcane fields and that the matter was reported to the C.R.P.F. Post, who called the Police Inspector of Police Station City, Yamuna Nagar, i.e. Vijender Singh, who is one of the accused. He had also stated that Kuldip Singh was in good health when they handed over him to the said Vijender Singh. He had also stated that later on, the complainant Order came and enquired and that they had given in writing about these facts He had identified his signatures in the document Ex.PW-7/A.
10. Dr. Mahavir Goel (PW-3) stated in his evidence that he conducted the post-mortem examination on Kuldip Singh on 15-12-1988 at 10.30 a.m. According to him, there was no mark of any soot on the neck, face and finger nails had turned blue, and remains of vomitus had stuck in his mouth. He did not find any mark of injury on the body. He further found clotted blood in the, heart and in artery towards the left of the heart. He opined that if someone hits another with legs and fists in the stomach or the chest, it can cause vomiting, that at the time of vomiting, vomitus can get stuck in the wind pipe due to which a person can die. The doctor had also found yellowish patch of size 2 cm x 1/2 cm on the interior wall; of left Ventricle. After receipt of the report of the Chemical Examiner that no poison was detected, the doctor gave the opinion that Kuldip Singh died of heart-attack.
11. Learned counsel for the petitioners contends that the doctor who conducted the postmortem examination, did not find any external injuries on the body of the deceased-Kuldip Singh, and had opined that Kuldip Singh died due to heart attack and, therefore, a charge under Section 302, IPC is not called for. In my view, this contention of the learned counsel for the petitioners cannot be accepted. The Court is at the stage of framing charges only, and at this stage, the Court is not examining the evidence or materials placed before, it for the purpose of finding out whether ,the evidence and the materials placed before it warrant the conviction. The Court at this stage is only concerned with the question whether there is sufficient evidence/material to satisfy it it prima facie that there are grounds for framing the charge. I have already pointed out that the evidence of PW-7 shows that Kuldip Singh was handed over to police party headed by accused Vijender Singh, S.I. on 8-12-1988 itself but his arrest was shown only on 14-12-1988, and on the same day, he is alleged to have died of heart-attack during investigation. The factum of taking Kuldip Singh into custody on 8-12-1988 itself has been suppressed. He was found dead while in the custody of the police. The complaint alleges that there was a conspiracy among the police officials but, the learned Additional Sessions Judge did not agree with it, but found that there are grounds for framing the charge against the petitioners and the other accused under Section 302, IPC read with Section 34, IPC and Section 343 read with Section 34, IPC. The doctor who conducted the postmortem, though did not say that there were any external marks of injury he certainly gave the opinion that death can be caused by hitting a person with legs and fists in the stomach or the chest. According to him, such hitting can cause vomiting, that at the time of vomiting, vomitus can get stuck in the wind pipe which can result in the death of the person assaulted. I have also pointed out his other findings that there was a yellowish parch on the interior wall of the left ventricle, and that clotted blood was also present in the heart as well in the artery towards the left of the heart. He merely stated that Kuldip Singh (lied due to heart attack. If we take into consideration the effect of the totality of his evidence along with the facts of the case, it is clear that an inference can be drawn or a very strong suspicion arises that the death of Kuldip Singh was caused by the present petitioners and the other accused. Such an inference or strong suspicion based upon the above said facts and circumstances of the case certainly warrants the framing of a charge under Section 302 read with Section 34, IPC. Therefore the contention that a charge under Section 302/34, IPC ought hot to have been framed, is wholly unsustainable.
12. So far as the second contention that the complainant should have obtained sanction for prosecution as contemplated under Section 197, Cr.P.C. is concerned, the learned Additional Sessions Judge has observed that the accused have not shown that the police have the right to use third degree methods against any person or torture him during the course of investigation and thereby cause his death, and therefore, it was not part of their duty to torture or use the third degree methods against a person who was in their cus-tody. So the police officials who had indulged in such acts, cannot be stated to have acted in the discharge of their duty. The learned Additional Sessions Judge has also relied upon the decision of the Hon'ble Supreme Court in S.P. Saha v. M.S. Kochar AIR 1979 SC 1841 : 1979 Cri LJ 1367, wherein the allegation against the accused was that the accused had seized the goods and were holding them in trust in discharge of then duty, but they committed breach of trust by criminally misappropriating and converting those goods for their own use. The Hon'ble Supreme Court held that the dishonest misappropriation or conversion of goods by public servants which they had size, did not require sanction for prosection for the offences under Sections 409 and 120-B, IPC. Therefore, the learned Additional Sessions Judge dismissed the petition filed by the petitioners wherein they had requested that the complaint itself should be dismissed for want of sanction. The learned counsel for the petitioners contends that even as per the allegations of the complainant Kuldip Singh was taken into custody in connection with an offence under Sections 380/457, IPC and had died in the police custody and, therefore, the alleged acts committed by the petitioners should be taken to have been committed in, the course of the discharge of their official duties and if they are to be prosecuted in respedt of those alleged acts, sanction under Section 197, Cr.P.C. is necessary. In my view this contention is unacceptable. The investigation of an offence is certainly the duty of the petitioners Order, but; it can never be stated that during the course of the investigation, the petitioners and their co-accused are entitled to torture a person who was in their custody and there by cause his death. In such circumstances, it cannot at all be said that they were acting only in the discharge of their duties while they allegedly tortured and caused the death of Kuldip Singh. Prosecution for the commission of such offences can never attract the provisions of Section 197, Cr.P.C. Therefore, I am of the view that on the facts and in the circumstances of this case, sanction for prosecution of the petitioners and their co-accused is not necessary.
Therefore, the petition is dismisssed.