Bombay High Court
The State Of Mahaashtra vs Sheshrao Thombare & Anr on 22 January, 2015
Author: A.I.S. Cheema
Bench: A.I.S. Cheema
Criminal Appeal No.382/2002
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL 382 OF 2002
The State of Maharashtra,
through Police Station, Basmatnagar,
District Parbhani ... APPELLANT
(Original Complainant)
VERSUS
1. Sheshrao s/o Dagaduji Thombre,
Age major, Occ. Government service,
A.S.I., Police Station, Basmatnagar,
District Parbhani
2. Kacharu s/o Rambhau Rengade,
Age major, Occ. Govt. service as
Police Constable, B.No.1154,
Police Station, Basmatnagar,
District Parbhani. ... RESPONDENTS
(Original Accused)
.....
Shri B.L. Dhas, A.P.P. for appellant
Shri B.S. Kudale, Advocate for respondent No.1
Shri J.M. Murkute, Advocate for respondent No.2
....
CORAM: A.I.S. CHEEMA, J.
DATED: 22nd January, 2015.
Date of reserving judgment : 14/1/2015
Date of pronouncing judgment : 22/1/2015
JUDGMENT :
1. Respondents No.1 and 2, A.S.I. and Police Constable respectively, were facing trial for offence punishable under ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 2 Sections 330, 324, 323, 354, 166 read with Section 34 of the Indian Penal Code in clubbed trial R.C.C. No.157/1998 before the Chief Judicial Magistrate, Parbhani. In the prosecution of R.C.C. No.157/1998 filed by Police Station, Basmatnagar, the complaint filed by the Judicial Magistrate, First Class, R.C.C. No.424/1993 was merged, in which evidence before charge had been recorded and charge was also framed. Thereafter, in R.C.C. No.157/1998, respondents - accused No.1 and 2 filed application Exhibit 46 invoking Section 161 of the Bombay Police Act, 1951 (hereinafter referred as "the Police Act" in brief), claiming that the complaint filed by Magistrate as well as the charge sheet filed by the police regarding the offence alleged was time barred as the incident complained of that they had beaten complainant Shantabai and her husband and outraged modesty of the lady while she was in police custody, was beyond the period of six months from the date of incident. The acts were under the colour of duty as contemplated under Section 161 of the Police Act and the prosecution filed was time barred.
2. The Chief Judicial Magistrate heard the respondents -
accused and the Public Prosecutor and held that Section 161 applied to the acts complained of and as the complaint filed by Judicial Magistrate, First Class as well as the charge sheet filed ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 3 after taking sanction were beyond the periods of limitation provided under Section 161, the application was allowed and it was found that the prosecution was not maintainable and the respondents - accused came to be acquitted. The present appeal is filed against such acquittal. It would be appropriate to make a brief reference to facts involved to understand the controversy.
3. One Shantabai Jalbaji Dhone (hereinafter referred to as "complainant") came to be arrested with reference to N.C. Case No.54/1992 of Basmatnagar Police Station. After taking the necessary permission for investigation, her police custody was taken by the police between 11.7.1992 to 13.7.1992, which police custody was extended to 18.7.1992. On 18.7.1992, when the said Shantabai was produced before the Judicial Magistrate, First Class, Basmatnagar, she complained of physical ill-
treatment by the respondents - accused as well as made allegations of outraging her modesty. It was found that, she had 13 injuries on her person. It appears that, she has claimed that water mixed with chilly was poured in her vagina in order to extract information from her. The offence related to Treasure Trove Act and police wanted to recover gold coins found as treasure. The then Judicial Magistrate, First Class reported the matter to the Sessions Judge in view of para 3 of Chapter I of the ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 4 Criminal Manual and on directions of the Sessions Judge, Joint Judicial Magistrate, First Class, Basmatnagar enquired into the complaint. He sent report to the sessions Judge, Parbhani and on subsequent directions, Judicial Magistrate, First Class, Basmatnagar filed the R.C.C. No.424/1993 on 29.5.1993 under sections 323, 324, 330, 504, 354, 166 read with Section 34 of the Indian Penal Code.
4. In the meanwhile, complainant Shantabai filed F.I.R.
No.98/1992 with the Basmatnagar Police Station on 25.7.1992 regarding the torture to her while she was in police custody. It appears that, sanction of the competent authority was sought and it was received on 7.5.1994 and thereafter the charge sheet came to be filed on 4.8.1994 under Sections 330, 323 read with Section 34 of the Indian Penal Code.
5. The learned A.P.P. has argued that, there is medical evidence available and even evidence before charge was recorded and it discloses that the complainant Shantabai had as many as 11 injuries which were inflicted on her while she was in police custody by the respondents No.1 and 2. It has been argued that, the complaint of Shantabai is that, in order to extract information from her, she was given third degree ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 5 treatment which included beating by belt as well as the accused standing on her thighs wearing boots and pouring water mixed with chilly in her vagina. According to the A.P.P., the acts of accused could not have been passed of as acts committed in discharge of duty or under the colour of duty.
6. Against this, learned counsel for the respondents -
accused submitted that the trial Court has considered the dates of complaint and found that the complaint made by the Judicial Magistrate, First Class as well as the charge sheet after taking sanction, were barred in view of provisions of Section 161 of the Police Act. It has been argued that, the learned Chief Judicial Magistrate, while passing the impugned order, has considered the judgments as referred in the trial Court judgment and rightly concluded that the prosecution was not maintainable.
7. Before discussing the matter further, it would be appropriate to refer to the concerned Sections as well as relevant part of Section 161 of the Bombay Police Act. Sections 159, 160 and relevant part of Section 161 read as under :
"159. No Magistrate or Police Officer to be liable to penalty or damage for act done in good faith in pursuance of duty :-::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 6
No Revenue Commissioner, Magistrate or Police Officer shall be liable to any penalty or to payment of damages on account of an act done in good faith, in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any rule, order or direction made or given therein.
160. No public servant liable as aforesaid for giving effect in good faith to any rule, order or direction issued with apparent authority :-
ig No public servant or person duly appointed or authorised shall be liable to any penalty or to payment of any damages for giving effect in good faith to any such order or direction issued with apparent authority by the State Government or by a person empowered in that behalf under this Act or any rule, order or direction made or given thereunder.
161. Suits or prosecutions in respect of acts done under colour of duty as aforesaid not to be entertained, or to be dismissed if not instituted within the prescribed period :-
(1) In any case of alleged offence by the Revenue Commissioner, the Commissioner, a Magistrate, Police Officer or other person, or of a wrong alleged to have been done by such Revenue Commissioner, Commissioner, Magistrate, Police Officer or other person, any act done under colour or in excess of any such duty or authority as aforesadid, or wherein, it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed, if instituted, more than six months after the date of the Act complained of :
Provided that, any such prosecution against a Police Officer may be entertained by ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 7 the Court, if instituted with the previous sanction of the State Government within two years from the date of the offence."
(2) ........
(emphasis supplied)
8. Learned counsel for the respondents relied on the case of Virupaxappa Veerappa Kadampur Vs. State of Mysore, reported in AIR 1963 SC 849, in which the Hon'ble Supreme Court considered the above words "under colour of duty".
ig In para 10, it was observed as under : counsel
10. It appears to us that the words "under colour of duty" have been used in S.161(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false Panchnama or a false report he is clearly using the existence of his legal duty as a cloak for his corrupt action or to use the words in Stroud's Dictionary "as a veil to his falsehood". The acts thus done in dereliction of his duty must be held to have been done "under colour of the duty".
9. Reliance was placed by the learned counsel for the respondents on the case of Satish Vishwanath Palasdekar & ors.
Vs. State of Maharashtra, reported in [1999 (1) Mh.L.J.204 to submit that even if it was alleged that, force was used agianst the complainant, the acts would be protected. In that matter, in spite of offence under Section 304-A of I.P.C., benefit of Section 161(1) of Police Act was given. The Counsel has further, relying ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 8 on the case of State Vs. Atmaram Mahadeo Ghosale, reported in [1964 Mh.L.J. 471] submitted that the present prosecution must be treated as barred by limitation.
10. The above three judgments relied on by the learned counsel were referred to and relied on by the trial Court also while acquitting the accused.
11. With reference to the interpretation of the words "under colour of duty", relying on the above four judgments, the learned counsel for respondents vehemently submitted that the acts complained of in the present matter must be treated as "under colour of duty" or at the most in excess of duty or authority and so, Section 161 applies.
12. There is no dispute regarding the fact that the police custody of Shanbtabai was extended from 13.7.1992 till 18.7.1992 and on 18.7.1992, she made complaint that during the course of her police custody, she had been given ill-
treatment and claimed that her modesty had been outraged. The Judicial Magistrate, First Class, after following the necessary procedure under Criminal Manual, filed the complaint on 29.5.1993, which was admittedly beyond six months of even ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 9 18.7.1992 when the grievance of ill-treatment was made. The offence took place between 13.7.1992 to 18.7.1992. It appears that, the competent authority gave sanction on 7.5.1994, but somehow the police station went slow and instead of filing the charge sheet, before expiry of two years of the incident, the same was filed on 4.8.1992. Whatever it may be, the fact remains that, if Section 161 was to be invoked, the prosecution would not be liable to be entertained. However the question is whether the acts complained of could be covered under Section 161 as is being argued by the learned counsel for respondents relying on the interpretation of Section 161 and judgments referred above.
13. Coming to the judgment of "Virupaxappa" (supra), it was a case where the appellant Head Constable caught one Nabi Sab on 23.2.1954 with bundle containing 15 packets of Ganja.
However, he prepared panchanama incorrectly showing seizure of only 9 packets. On 24.2.1954, it was alleged that the Head Constable prepared new panchanama falsely reciting that a person coming towards village Budhihal ran away after throwing away a bundle and the said bundle contained 9 packets of Ganja.
The Head Constable was prosecuted as it was alleged that the panchanama and the report prepared by him were with dishonest ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 10 intention of saving Nabi Sab from legal punishment. It was in this context that the Hon'ble Supreme Court, in para 11, observed as under :
"11. We do not see how the fact that the seizure was made on 23rd and the false report was prepared on the 24th affects this position. Whether the false report was prepared on the 23rd or 24th the fact still remains that he prepared this under cover of his duty to prepare a correct Panchnama and a correct report and there is no escape from the conclusion that the acts by which the offence under S.218 of the Indian Penal Code was alleged to have been committed by the appellant were done by him under colour of a duty laid upon him by the Bombay Police Act."
14. Coming to the case of "Atmaram Mahadeo" (supra) relied on by the the trial Court, it simply referred to Head Note
(b) without going into the judgment. Para 3 of that judgment shows that, what was being looked into by the Hon'ble High Court was the question raised whether Section161 refers to private complaint or to State. It was argued that, prosecution launched by police report would not be affected. It was, however, held in para 13 of the judgment as under :-
13. Since all prosecutions are really prosecutions on behalf of the State, it is not possible to accept the argument that prosecutions which are intended by the Legislature to be covered by Section 161 of the Bombay Police Act are prosecutions initiated on private complaints and not prosecutions initiated on police reports. The use of the word "prosecution" in Section ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 11 161(1) necessarily implies that the State is referred to in that provision, and it must, therefore follow that every prosecution for an offence specified in Section 161(1) will come under the mischief of that provision irrespective of whether it is initiated on a private complaint or a police report."
The matter was then referred back for decision to the Single Judge.
Thus, the facts of these judgments relied on by respondents - accused were different.
15. Question is whether it is permissible for the police to beat a person in custody to extract information. Whether such act could be treated as act done under colour or in excess of duty or authority vested in the police. Section 161 of the Police Act, while referring to the act, refers to "any such duty or authority as aforesaid". Thus, the Section has to be read in context of Sections 159 and 160 reproduced above. Section 159 and section 160 show that the act done has to be an act done in good faith and in pursuance or intended pursuance of any duty imposed or authority conferred on the police officer. As per Section 52 of the IPC, nothing is said to be done in good faith which is done without due care and caution.
::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 1216. In this regard one of the old judgments is in the matter of Narayan Hari Tarkhande Vs. Yeshwant Raoji Naik etc., reported in AIR 1928 Bombay 352. This judgment was by the Full Bench. Facts of that matter show that, Sub-Inspector of Police, while investigating a cognizable offence against two berads called for the plaintiff to question him. When the plaintiff disclaimed of knowledge about the bearads, the Sub-Inspector got angry and abused the plaintiff and pulled him by his moustache.
It was alleged that, the plaintiff was beaten. The plaintiff filed suit for recovery of damages. The matter was considered in the context of Bombay District Police Act and Section 80 of the Code of Civil Procedure as was then applicable.
The observations in the judgment (Page 358) show that even at that time, it was observed that :
"The case was one of assault and battery in which damages were sought and it would be absurd to suggest that a police officer who has been guilty of assault and battery can say that he purported to commit that assault and battery in his official capacity."
While answering the reference, it was held (at Page
362) that the alleged assault or battery cannot be said to have been committed under colour or in excess of such duty or authority.
::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 1317. In the matter of The State of Andhra Pradesh Vs. N. Venugopal & ors., reported in AIR 1964 SC 33, three Judge Bench of Hon'ble Supreme Court was considering provisions of the Code of Criminal Procedure, 1898 and the provisions of Madras District Police Act. The observations in para 16 of the judgment show that the Supreme Court found that the provisions of the Cr.P.C. do not authorise the police officers to beat or to confine the person with a view to induce him to make a statement.
18. In the matter of State of Maharashtra Vs. Narhar Rao, reported in AIR 1966 SC 1783, observations of the Hon'ble Supreme Court show that police officer accepting bribe to weaken case of prosecution against accused cannot be said to be committing acts under the colour of office or act done in excess of duty or authority within the meaning of Section 161 of the Bombay Police Act. It found that the limitation of six months did not apply to such police officers. In the same report, in the matter of State of Maharashtra Vs. Atma Ram & ors., reported in AIR 1966 SC 1786, it was held that :-
"The provisions of Ss. 161 and 163 of the Criminal Procedure Code emphasize the fact that a police officer is prohibited from beating or confining persons with a ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 14 view to induce them to make statements. In view of the statutory prohibition it cannot, possibly, be said that the acts complained of, in this case, are acts done by the respondents under the colour of their duty or authority.
In our opinion, there is no connection, in this case between the acts complained of and the office of the respondents and the duties and obligations imposed on them by law. On the other hand, the alleged acts fall completely outside the scope of the duties of the respondents and they are not entitled, therefore, to the mantle of protection conferred by S. 161(1) of the Bombay Police Act."
(Position cannot be said to have changed after Cr.P.C. of 1973 came into force)
19. In the matter of Ashok s/o Bhikaji Pawar Vs. Pralhad s/o Namdeo Edke & anr., reported in 1988(1) Bom.C.R. 219, the police person had dragged the complainant from the Ota of his house to the police station and assaulted him throughout the way. It was found by this Court that the defence of immunity from legal action sought under Section 159 would not be available as there was no basis to infer that the complainant was evading arrest or that he had put up any resistence to the so called arrest.
20. In the matter of D.K. Basu Vs. State of W.B. etc., reported in (1997) 1 Supreme Court Cases 416, Hon'ble Supreme Court extensively dealt with custodial violence, torture etc. in police custody or lock up. Observations in para 28 of the judgment are as under :
::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 15"28. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods, or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third-degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it."
In para 35 of the judgment, the Hon'ble Supreme Court has given certain directions as preventive measures in this context. Keeping this judgment of the Hon'ble Supreme Court in view, it cannot be said that custodial violence can be permitted in civilized society.
21. Looking to the judgments referred, I would not invoke the matter of "Satish Vishwanath" (supra) relied on by the learned counsel for the respondents. In fact in the latest judgment on this count is the matter of Manabai w/o Kashirao Tandle Vs. Jagannath Ganpat Girhe & ors., reported in 2014 ALL MR (Cri) 4564 passed by this Court, after referring to the case law, it has been observed in para 14 as follows :
"14. It is thus clear that the act alleged must have ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 16 some nexus with the duty of police officer to have protection of Section 161 of the Bombay Police Act. Unless some nexus or connection between the duty of the police officer and the alleged act is shown, the protection under Section 161 of the Bombay Police Act will not be available. To put it in other words or by way of example it can be said that if the police officer who is empowered to prepare panchanama and while acting as such police officer introduced something wrong in the panchanama, it can probably be argued that the act was committed under the colour of office. However, if a police officer while arresting accused assaults him or beats him without there being any reason for the same, it cannot be said that the offence of assault or causing hurt or grievous hurt, as the case may be, was committed under the colour of office. Similarly if the person dies in police custody due to assault on the part of police officer, it cannot be said that the accused was being interrogated in a police custody and he died during the course of interrogation and therefore, the protection was available to the police officer. As such no straight-jacket formula can be laid down in respect of the provisions of Section 161 of the Bombay Police Act. Suffice it to say that some nexus or connection between the alleged act and the duty of the police officer is to be established to see the protection under Section 161 of the Bombay Police Act. Similar is the position with regard to the protection claimed by virtue of Section 197 of the Criminal Procedure Code."
22. If the facts of the present matter are seen in this context, it is quite clear that, after taking police custody, although the police could have interrogated the complainant, there was no right to beat her or commit acts outraging her modesty. Instead of resorting to scientific methods of questioning, such acts were resorted to. There is no material to show that while interrogating the complainant, any female police official was present. The acts cannot be treated as done under ::: Downloaded on - 22/01/2015 23:46:34 ::: Criminal Appeal No.382/2002 17 "colour or in excess of duty or authority" vested in the police officials. The impugned order is not at all maintainable and deserves to be set aside.
ORDER (I) The order of the Chief Judicial Magistrate, Parbhani, dated 11.10.2001, passed in R.C.C. No.157/1998, acquitting the respondents - accused is quashed and set aside. The criminal prosecution is restored to its original number. The trial shall now proceed further according to law.
(II) Looking to the fact that it is an old case, the same is expedited. The Chief Judicial Magistrate, Parbhani shall try to dispose the case within six months. Respondents
- accused are directed to appear before the trial Court on 16th February 2015.
(III) Observations made in this judgment regarding facts are limited for taking decision in this appeal and shall not affect the trial which is yet to be completed.
Appeal stands disposed accordingly.
(A.I.S. CHEEMA, J.) fmp/cri382.02 ::: Downloaded on - 22/01/2015 23:46:34 :::