Karnataka High Court
Ismat Sara vs The State Of Karnataka on 26 August, 1980
Equivalent citations: 1982CRILJ1076
ORDER
1. In this revision, the report and findings of the Magisterial Inquiry held by the District Magistrate, Bangalore, in pursuance of the Government letter No. HD 112 SPD 77 dated 28-5-77 into the cause of death of one Sri Syed Abdul Salam, are sought to be challenged.
2. The petitioner is the wife of late Syed Abdul Salam, residing at No. 9/2A, Lalbag Road, Bangalore.
The deceased-Salam, who was aged about 43 years at the time of his death, is said to have been an active worker of Jamait-e-Islami Organisation. He was first arrested on 4-7-75 in connection with an offence under Defence of India Rules, and enlarged on bail on 21-7-75. Though, the criminal case against him under the Defence of India Rules ended in acquittal on 29-12-1975, but before that on 12-11-1975, he was again taken into custody under the Maintenance of Internal Security Act, 1971, as amended by the Maintenance of Internal Security (Amendment) Act, 1975 (hereinafter referred to as 'the Act') and under the orders of detention issued by the Commissioner of Police under sub-clause (2) of Clause A of sub-section (1) of Section 3 of the Act, he was detained in Central Jail, Bangalore. The said order of detentionwas confirmed by the Government by order No. HD 664 SPD 75 dated 27-11-1975.
He was a chronic patient suffering from Duodenal Ulcer. He developed heart trouble around about January, 1976; while under detention in the Central Prison, he started complaining (of) pain in chest though he repeatedly requested and made applications for his release on parol to enable him to take treatment outside, but they were not considered. The deceased-Salam often complained before the co-detenus that the Doctors were treating him for chest pain with indifference. On 31-8-76 on his again complaining the chest pain, Dr. Hande of the Medical Board of Bowring Hospital examined him and advised examination by Cardiologist of the Bowring Hospital. On 2-9-1976, on the advise of the Medical Board, he was sent to the Hospital for admission. He was taken to the Hospital but was sent back on the ground that no bed was available for him. He, however, was admitted to the Bowring Hospital on 3-9-1976. His condition went on worsening. On 18-9-76, when his condition became serious, the Government, it appears, revoked the order of detention, but before communication of the said order (which was received by the Asst. Superintendent of the Central Jail at 5-45 p.m.), he however, died on the same day at about 5-15 p.m. in the Hospital.
It appears there was lot of protest by the co-detenus in the Jail as also the relatives of the deceased and the Public that the deceased-Salam was a victim of negligence of both, the Jail authorities and Doctors of Bowring Hospital. Therefore, yeilding to public pressure, the Government thought fit to hold a Magisterial Inquiry into the cause of death. Accordingly, under letter No. HD 112 SPD 77 dated 28-5-77, the District Magistrate, Bangalore, was directed to hold an inquiry. After stating the circumstances leading to the detention and admission of the deceased Salam for treatment in the Bowring Hospital and his death, while under treatment in the hospital, the letter which was signed by the Deputy Secretary to Government, Home Department (police), read as follows :
"as Shri Syed Abdul Salam died immediately after his release, I am to request you kindly to hold a magisterial enquiry into the cause of his death and furnish your report to the Government at an early date."
In pursuance of the said letter issued by the Government, after giving wide publicity inviting persons interested in giving evidence into the cause of death of the deceased-Salam and after recording the evidence of the Jail officials and Doctors as also the co-detenus, relatives including the wife of the deceased-Salam (the petitioner herein) and considering the documents including history sheets, the District Magistrate came to the conclusion that there was no evidence of foul play or crime committed resulting in the death of the deceased Salam, but the deceased-Salam died a natural death of Myocardial infraction. He also concluded : there was no evidence of wanton negligence in the treatment given to the deceased-Salam either in the Jail or in the Hospital. He, however, observed that there were serious allegations against a particular doctor, who was said to be a Unit Chief in the Bowring Hospital, who allegedly expected money for giving special attention to the treatment of the deceased Salam and certain essential drugs like Nitrates and Bita Blockers, useful and appropriate in treatment of the heart ailment to relieve the agony of the patient, were not given and the same required to be investigated further as it was beyond his competence to say anything definite in the matter.
It is being aggrieved by the said findings and observations in the report, the petitioner has approached this court in revision with a prayer that the findings of the Dist. Magistrate being illegal and opposed to the facts and probabilities of the case, be set aside.
3. Sri. S. V. Jagannath, learned counsel appearing for the petitioner, did not seek to dispute the correctness of the conclusion reached by the District Magistrate that there was no foul-play or crime committed resulting in the death of the deceased Salam, but the deceased-Salam died a natural death of Myocardial infraction. He, however, contended that the conclusions reached by the District Magistrate that there was no evidence of wanton negligence in the treatment given to the deceased-Salam either in the jail or in the Hospital and the observation that it was beyond his competence to go into the question of allegation regarding the expectation of money for giving special attention to the treatment of the deceased-Salam by a particular Doctor and the failure to give the essential drugs as mentioned earlier was not correct. On the basis of the evidence adduced during the inquiry, it was obligatory on the District Magistrate to record the findings and the findings as recorded by the District Magistrate being erroneous, deserved to be set aside.
4. Mr. Chouta, learned High Court Government Pleader, appearing for the State argued that the Magisterial inquiry being merely a fact finding inquiry, the District Magistrate having specially been appointed to hold an inquiry into the cause of death and make a report about his findings and the report being not conclusive and binding and merely recommendatory it was not amenable to the revisional jurisdiction of the High Court inasmuch as the District Magistrate holding inquiry was not an inferior criminal court and the revision itself was not competent and deserved to be dismissed.
5. It may be mentioned here when the present revision was filed on 14-6-79, the office raised an objection regarding the maintainability of the revision and returned the petition to the learned counsel appearing for the petitioner; when the petition was represented with a request to post the same before the court on 26-6-1979, it came to be posted before the Court and S. R. Range Gowda, J. heard the learned counsel appearing for the petitioner, but without deciding the question of maintainability directed the office to register the petition as a criminal revision petition. Thereafter, when it was posted for admission on 30-7-79, R. G. Desai, J. also proceeded to admit the revision without deciding the question of maintainability of the revision. Therefore, it appears, even though the petition has been admitted as revisionit is still open to consider the question of maintainability. The first question, therefore, that requires to be considered before proceeding to consider the contentions advanced by Mr. S. V. Jagannath, learned counsel for the petitioner is : whether the revision is itself competent and maintainable, against the report or the findings of the Magisterial Inquiry.
6. As already observed above, the Government letter No. HD 112 SPD 76 dated 28-5-77 itself does not state under what provisions, the Dist. Magistrate was required to hold such an inquiry into the cause of death. However, no doubt, the District Magistrate has proceeded to hold the Magisterial Inquiry, invoking the powers under Section 176 read with Section 174 of the Code of Criminal Procedure into the cause of death. Section 176, Cr.P.C. which deals with an inquiry by Magistrate into cause of death, provides whenever any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of or in addition to, the investigation held by the police officer; and, if he does so, he shall have all the powers in conducting it which he would have, in holding an inquiry into an offence."
Sub-section (2) of Section 176, Cr.P.C. empowers the Magistrate holding such an inquiry to record the evidence in connection therewith in any manner, according to the circumstances of the case.
Sub-section (3) of Section 176, Cr.P.C. also empowers such a Magistrate holding inquiry, if the Magistrate considers it expedient, to make an examination of the dead body of any person, who has already been inferred in order to discover the cause of death, to cause the body to be disinterred and examined.
7. Here, the deceased-Salam though detained under the orders of the Commissioner of Police, was no longer in the custody of the police. He was in Central Prison and in the custody of the Superintendent of the Jail, when he was removed to the Bowring Hospital and died on 18-9-1976. Even though the Government letter stated that the detention order was revoked, but the same was not communicated to the Superintendent of the Jail before the deceased-Salam died. Therefore, the first part of the present Section 176 Cr.P.C., which contemplates inquiry by the Magistrate into the cause of death of a person while in the custody of police, was not attracted. The second part of Section 176 was also not attracted because, the provisions of sub-section (1) of Section 174, Cr.P.C. were attracted to the case of a death of a person, who has committed suicide, or has been killed by another, or by an animal, or by machinery, or by an accident, or had died under circumstances raising a reasonable suspicion that some other person has committed an offence. The death of the deceased-Salam being not in any of those circumstances, and there being no suspicion of the commission of any offences resulting in the death of the deceased, it appears it was merely a fact finding inquiry ordered by the Government in exercise of its inherent powers with a view to calm and satisfy the demandof the public. Neither anyone was accused of the commission of any offences nor there was any suspicion about the commission of any such offences resulting in the death of the deceased. The Magisterial inquiry itself thus being in pursuance of the special direction of the Government and it being merely a fact finding inquiry ordered by the Govt. it appears, there is much force in the contentions of Mr. Chouta, the learned High Court Government Pleader, appearing for the State, that the findings recorded and the report made by the District Magistrate to the Government being merely recommendatory and not a decision binding on the Government, was not amenable and open for the revisional jurisdiction of the High Court under Section 397, Cr.P.C. because, Section 397, Cr.P.C. empowers the High Court and any Sessions Judge to call for and examine the records of any proceedings before any inferior Criminal Court situate within its or his local jurisdictio, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of the finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Criminal Court. No doubt, as provided under Section 6, Cr.P.C., the Executive Magistrates are classed in the Criminal Courts and the explanation to Section 397, Cr.P.C. also says that all Magistrates, whether Executive or Judicial and whether exercising original or appellate jurisdiction, shall deemed to be inferior to the Sessions Judge, both for purposes of Sections 397 and 398 Cr.P.C. But, the question, however, is whether the Executive Magistrate holding an inquiry into the cause of death under Section 176, Cr.P.C. does so as a court. The word 'Court' has not been defined in the Code of Criminal Procedure. In the case of Brajnandan Sinha v. Jyoti Narain, , their Lordships of the Supreme Court had occasion to consider, what is a Court ? Noticing the definition of the word 'Court' in the Evidence Act, their Lordships observed Section 3 of the Evidence Act defines, 'Court' as including all Judges and Magistrates, and all persons except arbitrators, legally authorised to take evidence. But, this definition, however, was not exhaustive, the scope of the definition was limited only for the purpose of Evidence Act and could not be extended where such an extension is not warranted.
8. Proceeding further and after referring to Sections 19 and 20 of the Indian Penal Code and the definition of the words 'Judge' and 'Court of Justice', their Lordships observed : "Section 19. The word 'Judge' denotes not only every person who is officially designated as a Judge, but also every person, who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment."
Proceeding further, their Lordships also observed as follows :
"The pronouncement of a definitive judgment is thus considered the essential 'sine qua non' of a court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a court". Therefore, even though the provisions of Section 176 read with Section 174, Cr.P.C. were not strictly applicable to the inquiry made by the District Magistrate, yet having regard to the fact that the District Magistrate had proceeded to hold inquiry invoking the powers under Section 176, Cr.P.C., it cannot be said that in holding inquiry, he was acting as a Court. Section 176, Cr.P.C. though empowers an Executive Magistrate to hold an inquiry into the cause of dealth of a person and during such inquiry, the Executive Magistrate is legally empowered to record the evidence of the witnesses, but that Section does not say that should happen after finishing the inquiry. So, neither the findings nor the report was a judgment. In the present case, while the scope of the inquiry was confined to the ascertaining into the cause of the death of the person, what the District Magistrate was directed to do was to hold an inquiry into the cause of death of the person and make a report to the Governmen. That being so, it is clear that the District Magistrate was not acting as a Court.
9. It was argued by Sri S. V. Jagannath, learned counsel for the petitioner, that since the expression 'inquiry' as defined in clause (G) of Section 2 Cr.P.C. means every inquiry, other than a trial, conducted under the Code by a Magistrate or Court and 'Judicial Proceeding' as defined in Clause (I) of the same section, includes any proceeding in the course of which evidence is or may be legally taken on oath, and sub-section (2) of Section 176 empowers the Magistrate holding inquiry into the cause of death of a person to record the evidence, as such, the inquiry held under Section 176, Cr.P.C. being a judicial proceeding, the High Court had every jurisdiction and power to call for the records of such proceedings of the Magistrate holding inquiry under Section 176, Cr.P.C. and examine them in exercise of the revisional powers under Section 397, Cr.P.C., either confirm or modify the findings of such inquiry, like any other findings recorded by the Criminal Court. In Support of this contention he also strongly placed reliance on the decision in Re Laxminarayan Thimnmanna Karki, reported in AIR 1928 Bom 390 : (1928-29 Cri LJ 1063). Though at first sight, there appears to be some force in this contention, but on a closer consideration, it is clear that there is no substance at all in this contention. However, neither the fact that it is a Magisterial inquiry nor the fact that it is in the nature of 'judicial proceeding', holding the inquiry was a Criminal Court. No doubt, the object in enacting these provisions under Section 176. Cr.P.C. as observed by their Lordships of the Bombay High Court, who rendered the decision in Re Laxminarayan Thimmanna Karki is that an inquiry into a suspicious death should not depend merely upon the opinion of the police, but there should also be a further check on such police inquiry by enabling the Magistrate to hold an independent inquiry into the cause of suspicious death. But with due respect to the eminent Judges, who rendered that decision, I am unable to pursuade myself to accept the view taken in that case that the findings of such inquiry under Section 176, Cr.P.C. are amenable to the revisional jurisdiction of the High Court. It appears in Re Veerappan, AIR 1944 Mad 37 : (1944-45 Cri LJ 212), also the view taken was that where a Magistrate holds inquiry under Section 176, Cr.P.C. after recording the evidence of witnesses, a revision lies against an order relating to such inquiry. But both those cases, seem to overlook an important circumstance that Section 435, Cr.P.C. (old) and corresponding to Section 397, Cr.P. C. (new) empowered, the High Court and Sessions Judge to call for and examine the records of any proceedings of an inferior Criminal Court. As the Magistrate holding inquiry under Section 176, Cr.P.C. is not a court, the records of such inquiry, therefore, cannot be called and examined by the High Court under Section 397, Cr.P.C. While holding the inquiry under Section 176, the Magistrate does not function as a Criminal Court. The object of an inquiry is merely to elucidate the facts of a violent or unnatural death before there is any reasonable suspicion of the commission of any offence, and when such grounds do exist, the enquiry comes under other portions of the Code. The Magistrate's determination, if he chooses to make one lacks finality and authoritativeness and is neither binding nor conclusive. He has no jurisdiction to deliver or power to enforce it as a judgment. It is at best a proceeding before a Magistrate acting in his executive or administrative capacity; for the grant of power to hold an inquiry under Section 176 is incidental to an executive or administrative function. It has nothing to do with the exercise of judicial power (vide 1972 Cri LJ 83) (Him Pra). It is more so in the present case. As already observed above, the Magisterial inquiry did not pertain to the death of a person in the circumstances mentioned in Section 176 or sub-section (1) of Section 174 Cr.P.C. Here, the Magisterial inquiry was ordered by the Government, because of the public protest and only to ascertain the facts and circumstances under which the deceased died. The Magistrate was not left to act of his own to deal with the result of such enquiry and it was not final and not binding on the Government and the report was merely recommendatory. Therefore, the report and the findings are not amenable to the revisional jurisdiction of the High Court. In the result, the revision being not competent, is liable to be rejected. It is accordingly, rejected.
10. Revision dismissed.