Bombay High Court
Uttam Manulal Kale vs The State Of Maharashtra on 1 December, 1998
Equivalent citations: 1999(5)BOMCR341
Author: F.I. Rebello
Bench: F.I. Rebello
ORDER F.I. Rebello, J.
1. Rule. Respondents waive service. By consent heard forthwith.
2. Petitioner retired on 21st May, 1996 as Deputy Commissioner of Police (Crime) of Thane District. He has approached this Court in respect of show cause notice issued to him under section 250(1) by the Designated Court, Pune in decided TADA Case No. 22 of 1993. TADA Case No. 22 of 1993 resulted in the acquittal of the accused therein. The petitioner is not the person based on whose complaint or information the accusation was made. The learned Public Prosecutor informs that the matter was taken upto the Apex Court, which has rejected the appeal preferred by the State Government. What is relevant, however, is paragraph 156 of the judgment. The TADA Court arrived at the conclusion that it would be just and proper and in the interest of justice to issue notices to such Police Officers in the case who were instrumental in obtaining and granting sanction under the Arms Act, and under the TADA Act against the accused persons. After this the Designated Court in para. 160 of the judgment came to the conclusion that most witnesses who were examined turned hostile. Others who supported the prosecution case supported it half heartedly and from their conduct, behaviour and other aspects, their evidence was not found worthwhile to be believed. The observations in para 160 and the subsequent act of issuing notice to Senior Officers of the Police Force once again demonstrates the failure of the legal system in protecting those who bona fidely discharge duties assigned to them by law. If such notices do not demoralise the police force 1 do not know what else can. In the instant case Senior Officers, many since retired who merely granted administrative approval have been issued show cause notices like the petitioner herein, who had no role in the investigation of the offence except in his administrative capacity and was not the complainant. Peace eludes them even in retirement.
3. The question involved in this petition is the interpretation of section 250 of Cr. P.C. Section 250(1) of Cr.P.C. reads as under:-
"If, in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that there was no reasonable ground for making the accusation against them or any of them, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one or, if such person is not present, direct the issue of a summons to him to appear and show cause as aforesaid"
The questions which arise for consideration are as under:-
(1) Will the provisions of section 250 of Cr. P.C. apply to the Designated Judge of the Designated Court or to a Court of a Magistrate only?
(2) To attract the provisions of section 250 of Cr. P.C. must the offence be triable by a Magistrate only?
(3) Is it a requirement of section 250 of Cr. P.C. that it is only the Magistrate who held the enquiry or trial who can issue show cause notice under section 250 of Cr. P.C. (4) Is section 250 of Cr. P.C. applicable to a case instituted on Police Report or is it restricted to a case instituted on complaint or information given to the Police and does the expression person include a police officer in a case based on a police report.
(5) Are the officers who have prosecuted the matter in good faith protected under section 26 of the TADA Act.
4. I will first deal with the last question. Section 26 of the TADA Act, since repealed, contemplate that no suit, prosecution or other legal proceeding shall lie against the Central Government or a State Government or any officer or authority of the Central Government or State Government or any other authority on whom powers have been conferred under this Act or any rules made thereunder, for anything which is in good faith done or purported to be done in pursuance of the Act or any rules made there under or any order issued under any such rule. The applicability of this section is debatable to the issuance of the show cause notice. At any rate, assuming that the section is attracted the person to whom the show cause notice is issued will be entitled to show cause that the act was done in good faith. In the present petition the petitioner is yet to show cause. He has directly approached this Court to challenge the issuance of notice itself. In that light of the matter I do not propose to deal with and decide the question as to whether the petitioner and others similarly situated will be protected under section 26 of the TADA Act.
5. That brings us to section 250 of Cr.P.C. The language of section 250 of Cr. P.C. is clear. The expression used in the said section is Magistrate and not a Sessions Court or any other Court. Secondly, the power can be exercised in a case instituted upon a complaint or upon information given to a Police Officer or to a Magistrate and further the notice is to such person on whose complaint or information the accusation was made. It is in the light of the language used in this section that the section will have to be interpreted. The section will also have to be tested as to what is its scope and ambit bearing in mind that the purpose of law is to promote justice With this background the first contention can now be dealt with.
6. Section 9(6) of the TADA Act sets out that a person shall not be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State. Section 11 of the TADA Act is the provisions pertaining to jurisdiction of Designated Courts. The said section sets out that Notwithstanding anything contained in the Code, every offence punishable under any provision of the Act or any rule made thereunder shall be triable only by the Designated Court within whose local jurisdiction it was committed or, as the case may be, by the Designated Court constituted for trying such offence under sub-section (1) of section 9. Section 6 of the Cr. P.C. specifies out the Classes of Criminal Courts. The said section provides that besides the High Courts and the courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:-
(i) Courts of Sessions;
(ii) Judicial Magistrates of the First Class and, in any Metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class: and
(iv) Executive Magistrates.
The Code of Criminal Procedure has, therefore, recognised various classes of Criminal Courts constituted for the purpose of trying criminal offences. Section 250 refers to only a category of the Courts presided over by a Magistrate. In other words plain reading of the language of section 250 in conjunction with section 6 of the Cr.P.C. makes it clear that what the Legislature intended was to confer such a power only on the the Magistrates. There is no reference to the Courts of Sessions. In other words the Sessions trial or even the Courts constituted under any other law find no reference in section 250 of Cr.P.C. At the highest if such other Court is presided over by a Magistrate it perhaps could be contended that section 250 of Cr.P.C. would be attracted. That is not in issue herein as in so far as the Designated Court is concerned in terms of sub-section (6) of section 9 only such person can be appointed who was a Sessions Judge or an Additional Sessions Judge in any State. Clearly, therefore, the Court which has issued a show cause notice or for that matter the Court which tried the case under the TADA Act is not the Court under section 250 of Cr.P.C. In that light of the matter the show cause notice issued to the petitioner and others is clearly without jurisdiction and is liable to be quashed and set aside on this count alone.
7. However, as the petitioner has raised various other questions and moreover, as Senior Police Officers have been issued show cause notice it would be appropriate to deal with the other contentions to demonstrate that there was a total non-application of mind by the Court which passed the judgment and also the Court which issued the show cause notice to the present applicant and the other Officers. A heavy responsibility is cast on courts that before issuing a notice purporting to be under section 250 more so when Senior Officers are involved to apply their mind before issuing such show cause notices which has direct effect of demoralising an important arm of the executive. Judicial restraint in such matters is called for.
8. The second contention as raised is whether the Magistrate himself could have tried the offence. A perusal of section 3 read with section 5 of the TADA Act would show that the punishment that can be imposed in so far as section 3 is concerned, shall not be less than 5 years, which may extend to imprisonment for life and shall also be liable to fine. Similar is the case of whoever harbours or conceals, or attempts to harbour or conceal, any terrorist, can be punished with imprisoment for a term which shall not be less than 5 years which may extend to imprisonment for life and shall also be liable to fine. Section 5 to the same effect provides for a minimum imprisonment for term which shall not be less than 5 years which may extend to imprisonment for life. In other words these are offences which could not have been tried by a Magistrate. In fact Section 2(b) of the TADA Act defines the Code to mean the Code of Criminal Procedure, and section 2(c) defines a Designated Court to mean a Designated Court constituted under section 9. Section 25 of the TADA Act sets out that the provisions of this Act or any Rule made thereunder or any order made under any such Rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act. In terms of section 11 notwithstanding anything contained in the Code, such offences are triable only by the Designated Court. In other words there is no manner of doubt that section 250 of Cr.P.C. is not at all attracted to the facts of the present case as the offences triable by the Designated Court are not offences triable by a Magistrate. The show cause notice issued, therefore, is clearly without jurisdiction and consequently liable to be quashed and set aside in that count also.
9. The third contention which has been raised is that it is only the Magistrate who tried the case who can issue the show cause notice. I need not advert to this question at length, as in my opinion the issue is no longer res integra, but has been covered by a judgment of the Apex Court in the case of Nandkumar Krishnarao Navgire v. Jananath Laxman Kushalkar and another, . The Apex Court was seized of the very issue. The question before the Apex Court was whether the Magistrate who had not issued the notice under section 250 of Cr.P.C could as successor Magistrate, continue the proceedings. The Apex Court after considering the law as explained by various High Courts held as under:-
"Literal meaning of the expression "the Magistrate" occurring in the opening of sub-section (2) of the section 250, on first flush admits the interpretation that a succeeding Magistrate can continue with the proceedings initiated by his predecessor under sub-section (1) of section 250 Cr.P.C. An attractive argument can also be advanced to suggest that had the intention of the Legislature been that the same Magistrate, as initiating, should conclude proceedings under section 250, then the expression aforementioned in quotes could have been "such Magistrate." The last words in sub-section (6) "such Magistrate" can also be employed to support the afore-view, but the argument would not stand long because such Magistrate could also be read as the same Magistrate initiating and concluding (But here the Magistrate, 2nd Class)."
In other words the Apex Court clearly held that it is the Magistrate who had initiated action alone, who can pass final orders. In the instant case even assuming that the successor Magistrate is also the Magistrate, clearly the language of section 250 would not permit him to issue such notice as the opinion must be formed by the Magistrate who discharges or accepts the accused and the person on whose complaint or information the accusation was made is present to forthwith show cause. The notice on that count also is liable to be quashed and set aside.
10. That bring us to the fourth contention namely that in so far as section 250 is concerned the proceedings can be initiated only upon complaint or information. It is contended that the express language of section 250 makes it clear that section 250 will not be attracted in a case initiated on a Police report. Apart from the plain language of the section 1 again need not further dwell on the matter as the Division Bench of this Court has earlier in the case of Mahomed Meera v. Dattatray Bbabaji, A.I.R. 1947 Bom. 36 has held that cases initiated on Police report cannot be the subject matter of notice under section 250 of Cr.P.C. A similar view has also been taken by the Pull Bench of the Sind High Court in the case of Muhammad Hashim v. Emperor, A.J.R. 1940 Sind 134. It is, therefore, clear that in a case instituted on a report the Magistrate will have no jurisdiction to issue a notice under section 250. The distinction is apparent. In the first case the cognisance taken by the Magistrate is based on a private complaint or information given by the person to a Police or Magistrate. In the other case it is based upon the report. A report means based upon investigation done and a certain amount of sanctity is, therefore, given to the report. It is in these circumstances that the Legislature has thought it wise to exclude those cases based upon Police report. Therefore, section 250 cannot be put in action in a case based on Police report. This is all the more clear that the notice could be issued to the person on whose complaint or information the accused was prosecuted. Surely a Police Officer is not a person contemplated by section 250 of Cr.P.C. The person contemplated is the complainant on whose complaint or information the accusation was made. In the instant case the case was based on a Police Report. Clearly, therefore, the notice issued to the petitioner must be struck down on that count also.
11. Thus the petition has to be allowed on each and every point canvassed by the petitioner.
12. This case demonstrates the urgent need on the part of the courts to exercise restraint more so in cases where Special Courts were set up to deal with offences which the ordinary courts could not be dealt with under the exciting Laws. Laws like T.A.D.A. Act are anathema to our democratic State. However, sometimes in order to preserve our integrity and sovereignity such Laws have to be enacted because the existing laws are not capable of dealing with extraordinary situations. If the Police Officers in the exercise and discharge of their function carry out their duties as entrusted to them and in exercise of the powers conferred upon them, a solemn duty is cast on the courts also while passing judgments to observe restraint and caution. It is a sad reminder as in this particular case where after the Court itself arrives at a conclusions that the witnesses have turned hostile and the Court being aware of the accused arrayed before it, took recourse to section 250 of Cr.P.C. Judicial conscience ought to have been activated when witnesses had turned hostile or refrained from deposing before it. In the name of judicial activism Courts many times lose sight of the fact that like them there are two other important Constitutional functionaries the legislature and the Executive. Respect for each other are the hall marks of a Constitutional Democracy. Courts step into to protect individuals against arbitrary action by the other wings. That does not mean that at every drop of a hat we have to go for the jugular. If one arm of the Constitutional functionaries are wanting in their functions, it is the duty of the other to give a helping hand to restore the balance. Restoration is not by caving in or failing to discharge responsibilities, but on the contrary, the roles of the elder and the wiser. Such an approach alone will help us in strengthing our legal system. In conclusion, I extract the following paragraph from Lord Denying's book "What Next in the Law":-
"To return to whence I started: "Power tends to corrupt'. This I have shown you that is why in civilised society there should be a system of checks and balances to restrain the abuse of power. It is why in times past we stood firm against the oppression of King John, and set store by our Magna Carta. It is why we rebelled against the divine right of kings and enacted our Bill of Rights. It is why we resist today the conferring of absolute power on any person or body, or any section of the community. There is, so far as I know, only one restraint on which we can rely. It is the restraint afforded by the law. We have to respect all that Parliament has done, and may do, in the granting of powers and of rights and immunities-but let us build up body of law and to see that these powers are not misused or abused, combined with upright judges to enforce the law. It is a task which 1 commenced to all. If we achieve it, we shall be able to say with Milton:
'Oh how comenly it is and how reviving, to the spirits of just men long oppressed.' when God into the hands of their deliverer Puts invincible might...."
The might of the law itself.
13A. The aim of justice is to see that the wrong doers are punished. In our over anxiety to do justice and merely because the accused are acquitted cannot result in injustice to others. The majesty of the courts and of the legal system does not depend on convictions or acquittals or putting the fear in the minds of the other wing or a Parliamentary Government. It is always wise to remember of the following words :--
"There are many paths to the top of the mountain, but the view is always the same."
The approach may be different, but that can never be by humbling another constitutional arm. Having said so, the following order:-
Rule made absolute in terms of prayer Clause (a). There shall be no order as to costs.