Delhi District Court
(1) Criminal Revision No. 45/07, ... vs . Anil Kr. Gupta on 15 February, 2008
IN THE COURT OF SH. B. S. MATHUR,
ADDITIONAL SESSIONS JUDGE, DELHI.
IN THE MATTER OF:
(1) Criminal Revision No. 45/07, Surender Yadav Vs. Anil Kr. Gupta
(2) Criminal Revision No.46/07, Prem Singh Hooda Vs. Anil Kr. Gupta
(3) Criminal Revision No. 47/07, Dharam Bir Vs. Anil Kr. Gupta
(4) Criminal Revision No. 48/07, Ramesh Kapoor Vs. Anil Kr. Gupta
(5) Criminal Revision No. 49/07, Joginder Singh Vs. Anil Kr. Gupta
(6) Criminal Revision No. 50/07, Gajraj Singh Vs. Anil Kr. Gupta
Date of Final Order : 15/02/2008
ORDER
1. These six revision petitions have been directed against a common order dated 24.01.2007, passed by Sh. Sandeep Yadav, Ld. MM, Tis Hazari Court, Delhi, in a Complaint Case No. 127/01, titled as Anil Kumar Gupta Vs. Surender Yadav and Others, whereby Ld. MM was pleased to summon the petitioners as accused u/s 202 Cr.P.C. and were directed to appear before the said court on 10.04.2007 through bailable warrants.
2. The facts in brief, as emanates from the record, and necessary for the disposal of these six revision petitions are, that on the night of 31.01.02, an information was received at the police station Ashok Vihar at 12.45. am from Trauma Centre through constable Subhash to the effect that one Kishan S/o unknown R/o64, Sawan Park, Ashok Vihar, Delhi, was got admitted by Anil Kumar / now complainant, after sustaining injuries by fall from stairs. This information was recorded in writing vide DD No. 23 A, which was assigned to S.I. Surender Kumar. In compliance of this assignment, S.I. Surender Kumar went to Trauma Centtre with constable Varsa Bindu and obtained the MLC of injured Kishan, wherein the doctor had mentioned alleged history "fall from stairs as told by the brought by" Kishan was in inebriated condition. In addition to [ PAGE 1 OF 14 ] the injuries sustained, he was declared unfit for statement. S. I. Surender Kumar also met there Sh. Anil Kumar and one Sh. Gopal s/o Devi Dutt and thereafter he returned to the police station. In his arrival entry, S. I. Surender Kumar had recorded that as per the statement of witnesses, injured Kishan was under the influence of liquor and at about 9 p.m. while getting down from upstairs, he stumbled and fell down and sustained injuries, since the incident had occurred suddenly and by chance, no police action was warranted, therefore, the DD No. 23 A was kept pending till the injured becomes fit for statement.
3. Subsequently, one Sh. Anil Bahadur s/o Sh. Kirshan Bahadur came to the police station and lodged the report to the effect that on 31.01.2002 after returning from his duty and preparing food, while he was taking meals at about 9.30 p.m., Kishan went down the stairs. After sometime of reaching Kishan down the stairs, he heard noise. He saw from the roof that Anil Kumar and Jaggi were giving beatings to Kishan. In the meantime, Jaggi gave a push to Kishan as a result of which the head of Kishan struck against a wall and he fell down. Anil Bahadur came down and found that Kishan was bleeding from head. When Anil Bahadur inquired from Anil and Jaggi as to why they have given bearings to Kishan, they replied that Kishan had refused to pay the amount of shop as well as of rent. Kishan was lifted and taken inside. On seeing the condition of Kishan, Jaggi called a doctor from neighbourhood who advised that injured Kishan be shifted to hospital. Anil and Jai Bahadur removed injured Kishan to hospital in a three wheeler scooter. When Anil Bahadur wanted to accompany the injured, Jaggi asked him to accompany him on a two-wheeler scooter. Jaggi asked Anil Bahadur to bring a blanket from upstairs, upon which Anil Bahadur went there but Jaggi closed the door from outside, thus Anil Bahadur could not come out of the room. Only in the morning, Jai Bahadur opened the door. Anil Bahadur went to the people of his native village and thereafter he went to the police station to lodge a report. He prayed for taking action against Jaggi and Anil.
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4. On this statement of Sh. Anil Bahadur a case u/s 308/342/34 IPC vide FIR No. 66/02 at police station Ashok Vihar was registered on the endorsement of S.I. Surender Kumar, who was also entrusted the investigation of this case.
5. The injured Kishan expired in the hospital. Consequently, the case was converted into section 304 IPC. During investigation, it also came to the notice of the investigating officer that the blood dropped at the spot was got removed from the place of occurrence by Smt. Kamlesh. Therefore, the provision of Section 304/201 IPC were also added. After collecting the necessary evidence and after discussing with the senior officers, it was realised that a case u/s 302 IPC is made out and investigation was assigned to inspector Usha Bail, Addl. SHO of police station Ashok Vihar. Later on, investigation was conducted by S.I. Dharamvir. The accused Jagdish @ Jaggi, Anil Kumar and Smt. Kamlesh were arrested during the course of investigation and on completion of the investigation and necessary formalities, a charge sheet u/s 173 Cr.PC was filed in the court of Ld. MM. This case was subsequently committed to the court of sessions, which is now pending before this court only. It is also in place to mention that after hearing the parties, a charge against accused Jagdish @ Jaggi and Anil Kumar, has been framed u/s 304/342/201/34 IPC and for the section 201 IPC against accused Smt. Kamlesh and the same is pending for prosecution evidence.
6. Subsequently, Anil Kumar Gupta, accused in the aforesaid case, filed a complaint u/s 200 Cr.PC in the court of Ld. CMM on 20.03.2003 against ten persons, including the petitioners herein.
7. The allegations in the complaint, in brief, are as under:
(1) That DD No. 23A dated 1.2.02 and DD No. 3B dated 1.2.02 have been tempered with by the petitioners.
(2) That Gajraj Singh, the then SHO of police station played [ PAGE 3 OF 14 ] a material and crucial role for getting a false case registered through S.I. S. K. Yadav.
(3) That all the accused persons played foul with the record and writings and have tempered with the Rojnamcha and Daily Diary.
(4) That the accused No. 1 to 8 being public servants, fabricated the record in a manner which they knew to be incorrect, thereby causing loss and injuries to the complainant and his family members.
(5) That all the accused persons being public servants, corruptly and maliciously made in stage of judicial proceedings any report which they knew to be contrary to law, and are liable to imprisonment of seven years as provided u/s 219 IPC.
(6) That the accused persons have kept the complainant and others in confinement, corruptly and maliciously and ultimately committed complainant and his family for trial by acting contrary to law.
(7) That the accused No. 1 to 8 in the complaint have forged the documents and record and proceedings in a court of justice and such record or registers kept by them as a public servants, and are liable to imprisonment as per provision of law.
(8) That accused no .1 to 8 fraudulently and dishonestly used as genuine document and record which they have reason to believe to be forged and are liable to be punished for imprisonment of seven years as provided under section 471 of IPC.
(9) That accused no. 1 to 4 in connivance with accused no. 9 and 10 and the country being running under iron curtain tortured the complainant and his family namely Sh. Jagdish and Smt. Santosh Kumari while in their custody and they did so with ulterior object to obtain a false confession from them and they are liable to be punished for imprisonment for a term of two years.
(10) That all the accused persons wanted to dishonour, humiliate and defame the complainant and his family with ulterior object as the complainant is a social and public [ PAGE 4 OF 14 ] works and got prosecuted a number of high officials for their corrupt practices and whosoever has heard of atrocities perpetrated on the complainant and his family feels highly insulted and the conduct of all the accused persons has created a bad reputation of the complainant and his family with their friends, relatives and acquaintances.
(11) That all the accused persons have perpetrated atrocities on complainant and his family and have committed offences with common intention, deep conspiracy and with abetment of each other.
(12) That all the accused persons have framed false case and have falsely involved the complainant and his brother Sh. Jagdish @ Jaggi and Smt. Kamlesh respected moth of the complainant under Section 302/342/201/34 IPC.
(13) That a writ petition was filed in the High Court bringing the clear picture against the accused persons for handing over inquiry to C.B.I. But since the state had put up challan, therefore, the said writ petition was withdrawn with permission of the Court to exercise all rights and remedies of the complainant and his family.
1. On the basis of these allegations in the complaint, it was prayed as under :
That in the context, it is most respectfully prayed that this Ld. Court be graciously pleased to order summoning of all the accused persons and to issue non-bailable warrants against all the accused persons for their prompt arrest and they be taken in judicial custody and proceeded with under the above quoted provisions of law as per procedure prescribed. In view of the nature of the case, it is prayed that prompt proceedings may be taken in this case.
9. In support of this aforesaid complaint, 21 witnesses were examined by the complainant. Ultimately, vide order dated 24.01.07, all the petitioners were summoned as accused for the offences u/s 196/218/ 219/220/ 466/471 /500 /114 /120-B IPC. Hence these six separate revisions petitions.
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10. Since, the common questions of facts and law are involved in these six revision petitions, therefore, they can be heard and decided together by this composite order.
11. The first contention of the counsel for the petitioners is that the FIR in question, has been registered on the complaint of real brother Sh. Anil Bahadur of the deceased. Once, the FIR is registered, then as per provision of section 156 Cr. P. C., the police is authorized to investigate in a case where cognizable offence is made out. There should not be any interference or supervision of court or any other agency, except in accordance with the provisions of Cr. P.C. Therefore, once the FIR is registered and investigation is assigned to a police officer, then he is fully competent to investigate the case as per provision of Chapter XII of Cr. P.C. If the investigating officer feels that the custodial investigation is necessary, then he has unfettered powers to arrest the accused persons, unless the competent court orders otherwise. Likewise, he is to collect the evidence, record the statements of necessary witnesses, collect the material necessary for the proper investigation of a case, etc. In the back drop of these arguments, it is further contended by the counsel for the petitioners that arrest of the accused persons, converting the FIR from section 304 IPC to 302 IPC, recording the statements and collecting of necessary evidence in support of the case, was the sovereign act done by the petitioners in discharge of their official duty.
Therefore, they are protected from any prosecution, as much as, in the present case.
12. This contention is vehemently opposed by the counsel for the respondent on the ground that these revision petitions are not maintainable on the ground that the impugned order is interlocutory order. In support of this contention, he has also relied upon section 397 Sub-section 2 of Cr. P.C., wherein it is provided that powers of revision conferred by sub-section 1 of section 397 shall not be exercised in relation to any interlocutory order passed [ PAGE 6 OF 14 ] in any appeal, enquiry, trial or other proceedings. I do not agree with this contention as this issue has been settled by Hon'ble Supreme Court in case of Rajender Kumar Sita Ram Pandey Vs. Uttam, reported in 1999 (1) RCR (Crl.) Page 800, wherein, the Hon'ble Supreme Court has held that an order of summoning passed by Magistrate directing issuing of process, is not purely an interlocutory order, but it is an intermediate or quasi judicial order, therefore, revision is maintainable against such orders.
13. It is also contended by the counsel for the respondent that entire investigation in FIR No. 66/02 of police station Ashok Vihar, has been done by the petitioners illegal and by fabricating the evidence, documents and daily dairy. Thus, the act of petitioners is not protected under section 140 of D.P. Act. He has also relied upon number of judgments, such as, (i) Shambhu Nath Mishra Vs. State of U.P. - AIR 1997 S.C. 2102, (ii) State of H.P. Vs. M.P. Gupta - 2004(1) RCR (Criminal) - Page 197.SC., (iii) K. Kalimuthu Vs. State by DSP - (2005) 4 SSC - Page 512. SC., (iv) Central for Public Interest Litigation Vs. U.O.I. - 2005 VIII AD(S.C.) 625., (v) Parkash Singh Badal & Anr. Vs. State of Punjab and Ors. (SC) 2007 (1) RCR (Criminal) - Page 1., (vi) State Vs. Shiv Lal - 72 (1998) D.L.T. 567.,
(vii) C.B.I. Vs. Dharampal Singh & Anr. - 123 (2005) D.L.T. 592., (viii) M. Manoharan Vs. Director General of Police - 2002 CRI. L.J. NOC 51 (Kerala) - Page 17.
14. In order to answer the rival contentions of the parties, it is appropriate to understand the import of section 140 of D.P. Act, which is reproduced as under:
(1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted more than three months after the date of the act complained of;
[ PAGE 7 OF 14 ] Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
(2) In the case of an intended suit on account of such a wrong as aforesaid the person intending to sue shall give to the alleged wrongdoer not less than one month's notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been given before the institution of the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender of amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof"
15. A reading of this section clearly makes out that what is necessary to invoke the protection thereunder is 'if the act is done under colour of duty or in excess of such duty or authority'. This section does not protect every act of omission or commission of a police officer in service. The extent of an act of omission or commission of a policeman in the discharge of his duties has been explained by the Supreme Court in K. Kalimuthu V. State by D.S.P., MANU/SC/0248/2005 while dealing with Section 197 Cr. PC which sought to protect acts of public servants in the discharge of their duties. The Supreme Court has held -
"Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the duties of the public servant concerned. It [ PAGE 8 OF 14 ] is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty (under colour of duty) and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case."
16. From the aforesaid, it is clear that not only is every act of a policeman not covered for protection under Section 140 of the Delhi Police Act, 1958, but also must justify that the colour of duty satisfies the test i.e., if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of official duty; if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty (under colour of duty) and there were every connection with the act complained of and the official duty of the public servant - In the facts of the present case, as has already been stated, there is a complete nexus between the acts done and the duty cast on the policemen.
17. The provision of Section 197 Cr. P.C. in all material aspects is akin and similar to the provision of Section 140 of D.P. Act. The basic difference in two sections is only the limitation period for initiating action against the erring officials after taking prior sanction / permission of competent authority.
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18. Both the aforesaid judgments have been relied upon by the counsel for the respondent.
19. Now, the question arises, whether the alleged acts of the petitioners is in the discharge of their sovereign duties or not ? From the perusal of Section 140 D. P. Act, it appears to me that the real test of invoking the benefit of Section 140 D.P. Act, is that if the alleged act done by the petitioners is not performed in discharge of their official duties, would it amounts to dereliction of the duties. The alleged act must fall within the scope and range of the official duties of the public servant. It is the quality of that which is important and the protection of this section is available if the act falls within the scope a and range of its official duties.
20. Before adverting to the facts of this case and the rival contentions further, it is also necessary to understand the powers and scope of investigation. The Hon'ble Court in the cases of; I) Pawan Kumar Ruia v. S.P., C.B.I. (Economic Offence Wing) Calcutta, 1995 (2) East Cri C 270 (Cal); M.P. Singh Rathore V. State NCT Delhi, 2006 Cr LJ 1366 (Del). and II) Shesh Nath Tiwari v. State of U.P., 1998 (2) A Cri R 1606 : 1998 All LJ 226 (All)., has held that in this connection it was to be noticed that Section 156, Cr.P.C. authorizes the police to investigate "cognizable case". It was therefore, evident that law contemplates and mandates investigation relating to the case, a cognizable case and obviously the investigation cannot be predestined by the Court to be confined to particular accused only nor can it be shackled by the Court within a given frame on the basis of any foregone conclusion so as to exclude any particular person to be named beforehand. The purpose of an investigation is to ascertain whether any cognizable offence has been committed and if so, who are the persons involved in commission of such offence. The investigation is expected to proceed in a chain process leading to discovery of truth by proceeding from stage to stage on the basis of available materials and detected clues and therefore if in any [ PAGE 10 OF 14 ] case an investigation is allowed to continue it will have to be allowed to continue by following its own course in accordance with law so as to reach its logical destination. There is no scope of judicial tailoring of police investigation. In the absence of any positive order having been placed on record and upon a liberal interpretation of Sections 156 (1) and (2), Cr. PC the officer-in-charge of investigation had every authority to investigate the case as the incident had taken place within his jurisdiction and the reports submitted by the investigation officer could not be challanged on this ground.
21. In the light of the above discussions, settled position of law and in the present facts and circumstances, I am of the considered opinion that the alleged act of the petitioners is strictly within the official discharge of their sovereign duties, otherwise, it would have been amounted dereliction of their duties, thus are entitled for protection of umbrella of Sec. 140 of D.P. Act.
22. It is trite to say that the complainant first has to make out a case in complaint u/s 200 Cr.PC and only thereafter he can substantiate the same by way of oral evidence to be recorded in the court. In other words, the complainant has to make out a case in writing and then only he can be allowed to substantiate the same. In the present case, the contents of the complaint, in question, have already been reproduced herein above, explicitly clarifies that there is no specific allegations against any of the petitioners in the complaint. Only, vague and wild allegations are made in the form of text of a particular section of IPC. No specific act has been alleged against any of the petitioners.
23. As per the law of pleading and evidence, one has to plead first and then one can be allowed to prove the same fact by way of evidence in the court. The complaint cannot be allowed to conduct a roving and fishing enquiry against any police official by way of an complaint u/s 200 Cr.PC.
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24. No doubt, the complainant / respondent in this case has examined 21 witnesses, but the statement of witnesses are beyond the pleadings, thus the same are not admissible per-se in evidence. Therefore, the cognizance taken by the Ld. MM is even otherwise contrary to law. This can be viewed from another angle. A case u/s 304 IPC is already pending against the complainant and two others in the court of Sessions Judge. After hearing the parties and calling the record of complaint case, the predecessor court has already framed charges against the accused persons u/s 304/302/ 201/34 IPC. In the back drop of these facts, legally speaking, by way of impugned order, the Ld. MM is trying to overreach the process of law in the form of trial of a case against the accused persons pending in the court of Sessions Judge.
25. Once the FIR is registered u/s 154 Cr.PC, then the investing agency is bound to investigate the case. If the persons named in the FIR has any grievance, then they have only two options before them. Firstly, to invoke the relevant section of Cr. PC for quashing of the FIR, and secondly, to disprove the case of the prosecution during trial and then to invoke Sec. 340 Cr.PC. However, by the impugned order Ld. MM has made all the police officials involved in the investigation of this case or cited as a prosecution witness, as accused before and on the other hand as per the State case, the complainant along with other two persons are facing charge u/s 304/302/201/34 IPC in the court of Sessions Judge. By this way, whatever was done by the petitioners, law never permits the holding of trial of defence version till the conclusion of trial in the main case.
26. The entire allegations against the petitioners, more or less are circling around investigation conducted by the police into death of Kishan. Even otherwise, the alleged act against the petitioners, which were done while discharging their official duties, such as recording of information, amendment in the nature of offence, recording of statement and arrest of the complainant [ PAGE 12 OF 14 ] and others, have direct nexus between the alleged offences and discharge of the duties by the petitioners.
27. Admittedly, the session court has already taken cognizance in a case against the complainant and the case is still pending trial. Therefore, the judicial discipline requires that lower court should not pass any order or conduct any proceedings, which would, directly or indirectly, overreach the powers of the higher court and undo the proceedings conducted or pending before the higher court. In case, the proceedings in the complaint case are allowed to continue before the Ld. MM, then the same would amount to pre- judging the issue pending in the court of Sessions Judge, by the Ld. MM's court. Thus in my considered opinion, this is not the scheme of administration of criminal justice nor it is supported by legislative intention in framing Cr.P.C. In other words, in case the impugned order is allowed to be sustained, it would not only nullifying the cognizance taken by the superior court, but framing of charges and continuing with the trial would make redundant. In other words, the impugned order is not in consonance with scheme of Cr. PC.
28. The respondent in support of his contentions has relied upon more than twenty judgments. In addition to that he has also filed written arguments. I have carefully gone through the written arguments as well as judgment relied upon by the respondent. There is no dispute about the ratio descendi of the judgments relied upon by the respondent but, the facts in the present case and the facts in the cases relied upon by the respondent are clearly distinguishable. For the shake of bravity and to avoid repetition of arguments, all the judgments relied upon by the respondent are taken on record and the same have become part of the file, thus not dealt with individually. In fact, the judgments relied upon by him in support of his case are also relied upon by me in support of the view expressed on all aspects.
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29. That from the perusal of the record of the Ld. Trial Court it also appears that the petitioners have been summoned, more or less, in a mechanical manner. I am finding strength for holding this view for two reasons, (i) One of the petitioner in Crl. Revision No. 48/07, Sh. Ramesh Kapoor was ACP of the concerned area at the relevant time, whose role regarding the case against the complainant vide FIR No. 66/02 of PS Ashok Vihar, was to forward the same for filing in the court after consulting his senior officers. I cannot understand, what case is made out against him, even after presuming the statement of 21 witnesses examined by complainant as correct. In case of cognizable offence, the police has no power to close the case except with the prior permission of the court, therefore, the challan has to be filed in the court and, (ii) Vide impugned order, all the petitioners have been summoned for the offence u/s 196/466/471 IPC, also. From the bare perusal of Section 195 Cr.PC, no court shall take cognizance of the offence under the aforesaid sections, except on the complaint in writing of that court, or of some other court to which that court is subordinate.
30. Thus, in the light of facts and circumstances of this case, and in the light of the above discussions, I am of the considered opinion that the impugned order of Ld. MM dated 24.01.2007 passed in complaint case No. 127/1 titled as Anil Kumar Gupta Vs. Surender Kumar Yadav, is not sustainable in the eyes of law and the same is hereby set aside and all the six petitioners are discharged. If the petitioners are on bail, then their bail bonds stands cancelled and the sureties, if any, stood discharged. Copies of this order be placed in each revision file and one copy of this order be sent to the court of concerned MM along with its record and thereafter this file be consigned to Record Room.
Announced in the open Court (B. S. MATHUR)
on 15th February, 2008 Additional Sessions Judge, Delhi.
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