Gujarat High Court
Ramanbhai Ashabhai Makwana vs State Of Gujarat & 23 on 6 January, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/4768/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 4768 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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RAMANBHAI ASHABHAI MAKWANA....Applicant(s)
Versus
STATE OF GUJARAT & 23....Respondent(s)
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Appearance:
MS SHILPA R SHAH, ADVOCATE for the Applicant(s) No. 1
G H VIRK, ADVOCATE for the Respondent(s) No. 24
MR AN SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06 /01/2015
Page 1 of 24
R/SCR.A/4768/2014 CAV JUDGMENT
CAV JUDGMENT
1. By this writapplication under Article 226 of the Constitution of India, the petitioner original first informant of C.R. No. I32/2014, lodged with the Limbasi Police Station, District Surndranagar, for the offence punishable under Sections 143, 147, 148, 149, 323, 327 and 452 of the Indian Penal Code and Section 3(1)(X) of the Prevention of Atrocities Act, has prayed for the following reliefs: "(A) The Hon'ble Court may be pleased to admit this petition and call for the records and proceedings of FIR and the investigation papers, if any, in the interest of justice and be further pleased to direct the investigating agency to file a report before this Hon'ble Court within a period of 1 week from the date of order, in the interest of justice;
(B) The Hon'ble Court may be pleased to forthwith cancel the bail of the respondent nos.6 to 23 and further be pleased to direct the investigating agency to register the FIR as per the true version of the petitioner after due investigation;
(C) The Hon'ble Court may be pleased to direct the investigating agency to arraign the absconding accused who are named in the FIR and the statement of the witnesses;
(D) The Hon'ble Court may be pleased to direct the respondent no.2 to conduct the entire investigation impartially and independently and further be pleased to direct the respondent no.2 to continue the protection give to the petitioner and his community;
(E) The Hon'ble Court may be pleased to grant such other and further relief(s), as are deemed fit and proper by this Hon'ble Court, in the interest of justice."
2. The case of the petitioner may be summarized Page 2 of 24 R/SCR.A/4768/2014 CAV JUDGMENT as under:
(a) The people of village Malavad residing in a locality known as Vankarvas were fed up with the problem of supply of potable drinking water. Most of the people at Vankarvas are members of the scheduled Caste. Many representations were made before the Gram Panchayat to solve the problem of drinking water but the same was not taken care of by the authorities concerned. On 28th October, 2014 at about 8 O' clock in the late evening, the females of the locality went to the house of the Sarpanch, viz., Ushaben V. Parmar to discuss the problem of supply of drinking water. However, instead of listening to the problem of the villagers, the Sarpanch, her husband, viz., Vijaybhai Sursanbhai Parmar, and others got angry and behaved badly with the people residing at the Vankarvas. Thereafter, the villagers decided to speak to the Deputy Sarpanch, viz., Ganibhai, and he in turn informed the villagers that the pipeline had been damaged and in that regard he had also lodged a complaint. On 30th October, 2014 at around 9 O' clock in the night, the husband of the Sarpanch, viz., Vijaybhai, and other persons named in the FIR came at the Vankarvas with weapons like stick, hockey, sickle etc. and started hurling abuses to the people residing in the locality. They all uttered bad Page 3 of 24 R/SCR.A/4768/2014 CAV JUDGMENT words relating to the community of the people residing in the locality and started pelting stones. Although many attempts were made to parsuade them to stop behaving in a high handed manner, yet they refused to listen and assaulted many females with sticks and hockeys. Immediately thereafter the houses were also damaged by the accused persons. The well water was intentionally contaminated by pouring crude oil into the same. The agricultural fields of one Vishnubhai and others were also set on fire damaging the standing crop of rice.
3. It appears from the materials on record that the Deputy Superintendent of Police (SC/ST Cell), Kheda, Nadiad took over the investigation of the crime reported at the Police Station. It appears that no action was taken earliest in point of time. Practically, all the persons responsible for creating the unrest in the village were arrested on 2nd November, 2014 in the morning.
4. It also appears that the petitioner complained that the sections which were made applicable were not the correct sections and he requested to add sections 395, 120B, 268 and 277 of the Indian Penal Code and Section 3(1)(13) of the Atrocities Act.
Page 4 of 24 R/SCR.A/4768/2014 CAV JUDGMENT5. It also appears that the Dy.S.P. arrested few persons, and while they were being taken to the Nadiad Court for their production, a local M.L.A. of Matar, viz., Shri Keshrisingh Solanki, intercepted the Police Van and picked up an altercation with the Dy.S.P. The M.L.A. insisted that all those persons who were arrested and were being taken to the Nadiad Court should be released immediately. However, it appears that the Dy.S.P. did not pay any heed to the dictates of the M.L.A. and ultimately produced all those who were arrested, before the learned Judicial Magistrate, First Class at the Matar Court.
6. On the next day i.e. on 3 rd November, 2014, many local newspapers reported about the high handed action on the part of the local M.L.A.
7. It also appears that taking into consideration the tense situation prevailing in the area, a team of Police Officers was deployed with a view to prevent any further breach of public peace and tranquility.
8. It is also the case of the petitioner that had the respondents Nos.2 and 3 provided timely Police Protection on 29th October, 2014 itself as prayed for, then probably the unfortunate incident would not have occurred. The people Page 5 of 24 R/SCR.A/4768/2014 CAV JUDGMENT hailing from a downtrodden and poor class lost their property and were being humiliated in a worst possible manner.
9. In such circumstances referred to above, the petitioner has prayed that appropriate direction be issued for an impartial and fair investigation in the matter.
10. Ms. Shilpa R. Shah, the learned advocate appearing on behalf of the petitioner, vehemently submitted that appropriate action ought to have been taken against the local M.L.A. who had intercepted the Police Van and misbehaved with the Dy.S.P. According to Ms. Shah, the act of the M.L.A. was nothing short of an offence punishable under Section 186 of the Indian Penal Code i.e. obstructing public servant in discharge of public functions.
11. Ms. Shah submits that despite the Legislature providing for stringent provisions to curb the menace of preventing atrocities on the people belonging to the Scheduled Caste and Scheduled Tribe, yet such unfortunate incident occurred in the village and no proper action was taken by the Police.
12. In such circumstances referred to above, Ms. Page 6 of 24 R/SCR.A/4768/2014 CAV JUDGMENT Shah prays that there being merit in this petition, the same be allowed and the appropriate reliefs as prayed for be granted.
13. On 19th November, 2014, this Court passed the following order: "Today when the matter is called out, Ms. Phalguni Patel, the Deputy Superintendent of Police, Kheda, is personally present. The Dy.S.P. confirms the allegations levelled by the petitioner inthis petition against an MLA one Shri Kesarisinh Solanki. I permitted the Dy.S.P. to explain exactly what had transpired on the fateful day. The Dy.S.P. submits that after the incident, around 18 persons were arrested and they were being taken to the Matar Court for their production before the Magistrate. The DY.S.P. further submits that while on their way the police van was intercepted by the MLA Shri Kesarisinh Solanki and all the accused persons were asked to get down from the van, which was opposed by the Dy.S.P. The Dy.S.P. further submits that the accused persons refused to get down from the van and at that point of time the MLA Shri Kesarisinh Solanki misbehaved very badly. She submits that the MLA threatened her saying that the accused persons were his men and they could not have been rounded up like that. I inquired with the Dy.S.P., whether such incident was reported by her to the District Superintendent of Police or not. The Dy.S.P. states that she had orally informed the District Superintendent of Police, however, nothing is on paper.
If the allegations are believed to be true, it not only amounts to behavious unbecoming of a Representative of the People but it would also constitute an offence under Section 186 of the Indian Penal Code i.e. obstructing a public servant in discharge of his official duty.
I fail to understand why the Dy.S.P. did not deem fit to immediately lodge a private complaint in the Court of the Magistrate for the offence under Section 186 of the Indian Penal Code.
The petitioner shall join Shri Kesarisinh Solanki, MLA of Matar, as a party respondent. Let Page 7 of 24 R/SCR.A/4768/2014 CAV JUDGMENT notice be issued to the newly added respondent, returnable after one week from today. On the next date of hearing, the District Superintendent of Police, Kheda, shall personally remain present before this Court at 11.00 a.m. The State shall file a detailed affidavit in this regard by the next returnable date."
14. Pursuant to the aforenoted order, Shri Kesarisinh Solanki, M.L.A. of Matar appeared through his learned advocate. Shri Kesarisinh Solanki came to be impleaded as the respondent No.24. Shri Kesarisinh Solanki, M.L.A., filed an affidavit, interalia, stating as under: "I, Kesarisinh Solanki, son of Jesingbhai Solanki, aged about 36 years, having residence at Solankivado, Limbasi2, Ta. Matar, Dist. Nadiad Kheda, do hereby solemnly affirm and state on oath as under:
1. I say that I have been impleaded as Respondent No.24 in the captioned Special Criminal Application No.4768 of 2014 (the "captioned Petition"). On being served with the Notice of this Hon'ble Court on 25.11.2014, I have appeared in the present proceedings before this Hon'ble Court. Having perused the captioned Petition, and being aware of the limited facts of this case concerning me, I am filing this affidavitinreply.
2. I say that I am a Member of the Gujarat State Legislative Assembly from Matar constituency. I say that I am filing the present affidavit before this Hon'ble Court for the limited purpose of providing a truthful version of the events that occurred at the intersection leading to Traj village, on Kheda Khambhat Highway, between Matar and Limbasi, at around 4.40 pm, on 2.11.2014.
3. Except what is expressly admitted by me, to be true herein, the rest of the contentions raised and averments made in the captioned Petition which are contrary to or inconsistent with what is stated herein, are categorically denied, as if the same are specifically set out and traversed herein.
Page 8 of 24 R/SCR.A/4768/2014 CAV JUDGMENT4. At the outset, I say that being an active member of the local community of Matar, as also being their representative to the State Legislative Assembly, I merely intended to resolve the dispute and grievance that the Petitioner and his fellow community members allegedly had with the Respondent Nos. 6 to 23.
5. I say that on 2.11.2014, I was in Rasikpura (Ta. Dholka), and thereafter at Matar for some work. I say that between 3.45 pm and 4.00 pm, I left from Matar, for my home in Limbasi. I say that on my way from Matar to Limbasi, I received phone calls from residents of village Limbasi that during the early hours of that morning, as early as around 6.00 am, many people had been apprehended by the officers from Limbasi Police Station, and that the said persons had been held up at the Police Station for the entire day. I say that I was further informed that all the said apprehended persons were being boarded in a minivan and were about to be taken to Matar for production before the JMFC, Matar; and, therefore, there was tremendous anger in the residents of village Limbasi, and there was likelihood of altercation between the villagers in view of the fact that all the apprehended persons belonged to one specific community.
6. I say that on my way to Limbasi, near the intersection leading to Traj village, which is at a distance of approximately 6 kms from Matar, I saw the police convoy approaching from the opposite direction, and, having parked my car on the side of the road, I signaled the oncoming vehicles to stop.
7. I say that, thereafter, I requested to speak with the officer incharge, and, therefore, the Respondent No.4, i.e. Smt. Falguniben Patel, who introduced herself as the Deputy Superintendent of Police (SC/ST Cell), got down from the car to speak with me. I expressed my concern to the Respondent No.4 regarding the tremendous uproar and anger in the residents of Limbasi regarding the abrupt arrest of the accused persons in the early hours of the morning without any investigation. I further impressed upon the Respondent No.4, the importance of resolving the dispute in an amicable manner so as to preserve the communal harmony in village Limbasi. I say that I requested the Respondent No.4 to conduct further investigation and determine culpability of accused persons had already been arrested and were being taken to the JMFC, Matar. Furthermore, the Respondent No.4 stated that proper preliminary investigation had already been Page 9 of 24 R/SCR.A/4768/2014 CAV JUDGMENT conducted. Having said this, the Respondent No.4 got back into the police vehicle and drove away in the direction of Matar. I say that I drove to Limbasi village to take stock of the situation and pacify the local residents.
8. The contentions raised and averments made in the captioned Petition, more particularly those which are made against the answering respondent, are denied. I deny that I intercepted the police vehicles, or that I acted in a highhanded or arbitrary manner, or that I abused the Respondent No.4. I say that I had, by chance, happened to cross the police vehicles which were on their way to Matar, and had stopped them merely to arrive at a true between the warring parties, so as to preserve harmony in Limbasi. I say that I am a law abiding citizen and have not, in any way whatsoever, insulted, disrespected or misbehaved with the Respondent No.4.
9. As I am filing the present affidavit for the limited purpose of giving a truthful version of the events that occurred near Traj village, on Limbasi Matar road on 2.11.2014, I crave leave of this Hon'ble Court to file a detailed parawise affidavit, if necessary.
What is stated in paragraph nos. 1, 2, 4, 5(part), 6, 7 and 8(part) are true to my knowledge, what is stated in paragraph no. 5(part) is based on information which I believe to be true, and what is stated in paragraph nos. 3, 8(part) and 9 are submission of law."
15. A bare perusal of the affidavit filed by Shri Solanki indicates that he had got down from his car and had some dialogue with the Dy.S.P.
16. However, the most shocking and unfortunate part of the matter is the affidavitinreply filed by the Deputy Superintendent of Police, viz., Ms. Falguni Patel. In her affidavitin reply, she has interalia, stated as under : Page 10 of 24 R/SCR.A/4768/2014 CAV JUDGMENT "I, Falguni Patel, daughter of Shri Rameshbhai Patel, aged 31 years, Indian inhabitant, presently posted as the Deputy Superintendent of Police (SC/ST Cell), KhedaNadiad, do hereby solemnly affirm and state on oath as under:
1. I state that I am the Deputy Superintendent of Police (SC/ST Cell), KhedaNadiad, and I am authorized to file this affidavit in Reply to the captioned Special Criminal Application. Being conversant with the facts of the case, I am filing this affidavit for and on behalf of the State of Gujarat.
2. All allegations, contentions, averments and statements made in the captioned Petition are denied, save those which are specifically admitted to be true hereinafter. Nothing contained in the captioned petition shall be deemed to have been admitted solely because the same has not been dealt with in the present Reply.
3. I state that I am filing the present Reply, in view of the directions issued by this Hon'ble Court, vide order dated 19.11.2014, for the limited purpose of putting on record the true and correct rendition of facts, circumstances and events that transpired on 2.11.2014.
4. I state that in the morning hours of 2.11.2014, at around 7.15 am, I arrived from Nadiad Head Quarter to Limbasi village. At the time of my arrival, the accused respondent nos. 6 to 23 were already present at the Police Station at Limbasi. From 7.30 am to 9.00 am, the muddamal recovery panchnama and other formalities/procedures were completed and all the aforesaid accused persons were formally arrested at 9.00 am.
5. For the aforesaid, Station Diary Entry No.6/14 was effected in the Station Diary at 9.45 am. Thereafter, till around 2.30 pm, the investigation continued with respect to the particulars of the alleged offence. On account of ongoing investigation in another unconnected matter, I left Limbasi village for Asamli village. Having returned to Limbasi village from Asamli village at 4.15 pm, I, along with other officers of Limbasi Police Station, left along with the 18 accused, at around 4.30 pm, for Matar, for production of the said accused before the Hon'ble Judicial Magistrate First Class (JMFC), Matar.
6. I say that enroute to Matar, the convoy that Page 11 of 24 R/SCR.A/4768/2014 CAV JUDGMENT had left from Limbasi Police Station was, at the roundabout of Traj village, met by a car approaching from the direction of Matar (towards Limbasi). One Shri Kesrisinh Jesinghbhai Solanki, who was in the said car, got down and requested to speak with the undersigned deponent. The said Shri Kesrisinh Jesinghbhai Solanki informed the undersigned deponent at Limbasi Police Station. The said Shri Solanki stated that he had been informed by his persons in Limbasi that the accused (being respondent nos. 6 to 23), had been arrested based on false complaints and without any investigation. He asked the accused persons to get down from the police van but, the undersigned deponent resisted the said demands of the said Shri Solanki and informed him to refrain from interfering in performance of duty of a government servant. Therefore, the said Shri Solanki did not insist on the said demand. The said Shri Solanki, in a high pitched voice alleged that the accused persons had been falsely arraigned in the offence and that proper investigation should have been conducted before arresting the accused. The undersigned deponent informed the said Shri Solanki that she was doing her duty and, that the accused persons had been arrested after proper preliminary investigation. Thereafter, the said Shri Solanki got back into his car and drove away on the highway towards Limbasi village. The police convoy with the accused persons left for Matar.
7. Thereafter, the accused persons were produced before the Hon'ble JMFC, Matar at around 6.00 pm.
8. I say that in view of the fact that the events took place in the spur of the moment, and though the events were not serious, and further - were without any consequence or repercussion, the undersigned deponent deemed it appropriate to informally inform her immediately higher officer, i.e. the Superintendent of Police (SP), KhedaNadiad, and did the same. The SP inquired as to whether the undersigned deponent desired to register a formal complaint. The issue, not being a serious one, the undersigned deponent expressed her unwillingness to lodge a formal complaint.
9. With respect to the contents/averments of the captioned Petition, I say that the said Petition is factually inaccurate and without any corroboration. The contents of the captioned Petition appear to be hearsay and without any basis. The sequence of events that transpired on 2.11.2014, are incorrect, uncorroborated, vague and ambiguous. Furthermore, Page 12 of 24 R/SCR.A/4768/2014 CAV JUDGMENT the captioned Petition appears to have been filed solely on the basis of newspaper reports/clippings. The Petitioner has not verified the contents of the said newspaper reports and has merely rendered an exaggerated version of the events that transpired on 2.1.2014. The answering Respondent craves leave to filed detailed paragraphwise responses, if required.
10. As the present Reply has been filed for the limited purpose of presenting the true and correct rendition of events that transpired on 2.11.2014, the Respondent craves leave to file other and/or further affidavit(s), if required.
Solemnly affirmed at Nadiad on this 26th day of November, 2014."
17. Thus, it appears that on 19th November, 2014, the Dy.S.P. was bold enough to make a statement in the open Court that the M.L.A. Shri Kesarisinh Solanki had misbehaved with her very badly but, it appears that thereafter, within a span of few days, the tables turned and the Dy.S.P. now says that nothing of that sort had happened on the fateful day. There is nothing unusual about the same. It appears that on account of some pressure from the Government or from her superiors, the officer has softened her stance, which is not befitting an honest and a courageous Police Officer.
18. It is really very unfortunate that an M.L.A. acted in such a highhanded manner. The principal role of an M.L.A. is to represent the interest of the people of his constituency. However, that does not mean that if some people of his Page 13 of 24 R/SCR.A/4768/2014 CAV JUDGMENT constituency are accused of having committed a serious offence then the M.L.A. should go to the extent of intercepting the Police Van and enter into an altercation with the Dy.S.P.
19. An ideal MLA is one who looks after the development of the place and the people who have elected him to the Assembly as their representative. He keeps in touch with the people of his constituency and works for their betterment and attends to their collective or individual problems. He is not supposed to keep his voters happy at the cost of law and order situation and by protecting the guilty. He is expected to function within the bounds of the law.
20. According to the National Police Commission appointed by the Government of India in 1977, the basic role of the police is to function as a law enforcement agency and render impartial service to law, without any heed to the wishes, indications or desires expressed by the Government which, either come in conflict with or do not conform to the provisions contained in the Constitution or laws.
21. In the existing setup, the police function under the executive control of the State Government. According to the Commission, the Page 14 of 24 R/SCR.A/4768/2014 CAV JUDGMENT manner in which the political control has been exercised over the police in this country has led to gross abuses, resulting in erosion of rule of law and loss of police credibility as a professional organization. The threat of transfer/suspension is the most potent weapon in the hands of the politicians to bend the police down to their will. The Commission recommended that the superintendence of the State Government over the police should be limited to ensure that the police perform strictly in accordance with law. In the performance of its tasks, the police should be subject to overall guidance from the Government which should lay down broad policies for adoption in different situations. There should, however, be no instructions in regard to actual operations in the field. In regard to the investigation work, in any case, the police are beyond any intervention by the executives or politicians.
22. To help the State Government in the discharge of its superintending responsibility in an open manner under the framework of law, the National Police Commission also recommended to setup a State Secretary Commission through law in each State. The State Secretary Commission would (1) lay down broad policy guidelines and directions for the performance of preventive tasks and Page 15 of 24 R/SCR.A/4768/2014 CAV JUDGMENT serviceoriented functions by the police; (2) evaluate the performance of the State Police every year and present a report to the State Legislature; (3) function as a forum of appeal to dispose of representations from officers regarding their being subjected to illegal orders and regarding their promotions; (4) generally keeping in review the functioning of the police in the state.
23. One of the important recommendations made by the N.P.C. is with regard to the Police response towards the weaker sections of the society.
24. The NPC has recommended the establishment of Special Investigation Cell in the police department at the State level to monitor the progress of the investigation of cases under the Protection of Civil Rights Act or other atrocities against the Scheduled Castes and Tribes. It has been recommended that a composite cell be constituted at the district level under the SubDivisional Officer to inquire into the complaints emanating from the Scheduled Castes/Tribes, particularly those relating to lapses in administrative measures meant for their relief.
25. An important cause for the dissatisfaction of Page 16 of 24 R/SCR.A/4768/2014 CAV JUDGMENT the weaker sections of the society is that the police, sometimes, do not take cognizance of their complaints of illtreatment at the hands of the upper castes on the ground that complaints are noncognizable and, therefore, cannot be investigated by them without the orders from a Magistrate. The NPC has recommended that Section 155 of the Code of Criminal Procedure should be suitably amended to facilitate appropriate and effective police response to the noncognizable complaints in two categories of cases; (i) to protect a member of the weaker sections from exploitation and injustice, or (ii) to prevent a possible breach of public peace that might result from absence of effective action on complaint of noncognizable offence.
26. The Dy.S.P., Ms. Falguni Patel, has been appointed as the Dy.S.P.(SC/ST Cell).
27. The Political interference in the working of the police organizations is a hard reality in our system. The same has been repeatedly noticed by the various Commissions and Committees set up by the Government from time to time. The National Police Commission was appointed by the Government of India in 1997 with wide terms of reference covering the police organization, its role, functions, accountability, relations with the Page 17 of 24 R/SCR.A/4768/2014 CAV JUDGMENT public, political interference in its work, misuse of powers, evaluation of its performance etc. This was the first Commission appointed at the national level after the independence. The Commission produced eight reports between 1979 to 1981, suggesting wide range of reforms in the existing police setup. The second report submitted by the National Police Commission specifically dealt with the aspect of political interference in police work. It observed that in the existing setup, the police function under the executive control of the State Government. According to the Commission, the manner in which the political control has been exercised over the police in this country has led to gross abuses, resulting in erosion of rule of law and loss of police credibility as a professional organization. The threat of transfer/suspension is the most potent weapon in the hands of the politicians to bend the police down to their will. The Commission made several recommendations to remedy the situation.
28. On account of the failure of the Government to implement the recommendations of the National Police Commission, a writ petition under Article 32 of the Constitution of India was preferred before the Supreme Court titled "Prakash Singh and Ors. v. Union of India and Ors." being Writ Page 18 of 24 R/SCR.A/4768/2014 CAV JUDGMENT Petition (C) No.310/1996. The same was disposed of by the Supreme Court on 22.09.2006 by its judgment reported in (2006) 8 SCC 1 : (2006 AIR SCW 5233). The Administrative Manipulation of the Police" published in 1979 by the Bureau of Police Research and Development, which warned for excessive control of the political, executive and its principal advisers over the police as the inherent danger of making the police a tool for subverting the process of law, promoting the growth of authoritarianism, and shaking the very foundations of democracy. The Supreme Court also took note of the reports of various other high powered Committees and Commissions which had examined the issue of police reforms, viz. (I) National Human Rights Commission, (ii) Law Commission, (iii) Rebeiro Committee, (iv) Padmanabhaiah Committee, (v) Malimath Committee on Reforms of Criminal Justice System, and (vi) The draft outline prepared by Sorabjee Committee for a new Police Act. (Government of India vide Office Memorandum dated 20.09.2005 constituted a Committee comprising Shri. Soli Sorabjee, former Attorney General, and five others to draft a new Police Act in view of the changing role of the police in view of the socioeconomic and political changes which have taken place in the country, and the challenges posed by the modern day global terrorism, extremism, rapid Page 19 of 24 R/SCR.A/4768/2014 CAV JUDGMENT urbanization as well as fast evolving aspirations of a modern democratic society.
29. The Supreme Court also took note of the communication dated 03.08.1997 sent by the then Union Home Minister to the State Governments, wherein he echoed the overall popular perception that there has been a general fall in the performance of the police as also a deterioration in the policing system as a whole in the country, and he expressed that time had come to rise above limited perceptions to bring about some drastic changes in the shape of reforms and re structuring of the police before the country is overtaken by unhealthy developments. It was expressed that the popular perception all over the country appears to be that many of the deficiencies in the functioning of the police had arisen largely due to an overdose of unhealthy and petty political interference at various levels starting from transfer and posting of policemen of different ranks, misuse of police for partisan purposes and political patronage quite often extended to corrupt police personnel. The Union Home Minister expressed the view that rising above narrow and partisan considerations, it is of great national importance to insulate the police from the growing tendency of partisan or political interference in the discharge of its Page 20 of 24 R/SCR.A/4768/2014 CAV JUDGMENT lawful functions of prevention and control of crime including investigation of cases and maintenance of public order. (See: Sajjan Kumar V. C.B.I. 2011 CRI.L.J. 1225)
30. The Dy.S.P. Ms. Falguni Patel should remind herself that she is a young Police Officer aged 31 and has a long way to go. In her long career, she may have to meet with many such confrontations and political interference but, on account of the same, if she would succumb to the dictates of the politicians or superiors then probably no Police Officer would be in a position to discharge his or her duties efficiently boldly, impartially and in accordance with law.
31. Interference with the Police system, especially by the politicians encourages the Police Personnel to believe that his or her career advancement is not at all dependent on the merits of their professional performance, but can be secured by obliging or favouring politicians. Deliberate and sustained cultivation of a few individuals on the political plane takes up all the time of a number of Police Personnel to the detriment of the performance of their normal professional jobs to the satisfaction of the general public at large. This process sets the system on the downword slope to decay and total Page 21 of 24 R/SCR.A/4768/2014 CAV JUDGMENT ineffectiveness.
32. Apart from the deterioration in the act of Police performance viewed from the public point of view, the exercise of such pressure on the Police system from political and other extraneous sources immediately damages the control system and weakens the normal chain of command that has to operate efficiently if the discipline and health of the system are to be maintained. Interference at the operational level in Police Stations, Police Circles etc. results in the total by passing of the supervisory officers in the hierarchy.
33. It was expected of the Dy.S.P. to have immediately lodged a complaint in the Court of the learned Magistrate of the offence under Section 186 of the Indian Penal Code, after informing about the same in writing to her superior i.e. the District Superintendent of Police and that would have been the right and the correct way of making an M.L.A. realize that he is not suppose to interfere or meddle with the functions of the Police. To investigate any crime is the function and the duty of the Police. Even if, any person is illegally arrested or is innocent, an M.L.A. has no business or authority to act in such a high handed manner. There are Page 22 of 24 R/SCR.A/4768/2014 CAV JUDGMENT courts of law before whom the M.L.A. could have voiced his grievance. However, he could not have raised his voice on the middle of the road by intercepting the Police Van carrying accused persons and entering into an altercation with the Dy.S.P.
34. Coming now to the main petition, I may only say that the Dy.S.P.(SC/ST Cell), Kheda, Nadiad shall complete the investigation in accordance with law. The Investigating Officer shall see to it that the appropriate Sections of the Indian Penal Code are made applicable, keeping in mind the allegations levelled in the FIR and the other statements which must have been recorded in the course of the investigation. Ultimately, if the Investigating Officer decides to file charge sheet, then before filing of the same the District Superintendent of Police, the respondent No.2 shall go through the papers of the investigation so as to ensure that the investigation has been carried out in a fair, transparent and impartial manner. If the D.S.P. finds any flaw in the investigation carried out by the Investigating Officer then in such circumstances, he shall issue appropriate orders or directions in that regard, and only thereafter the final report shall be placed before the competent Court.
Page 23 of 24 R/SCR.A/4768/2014 CAV JUDGMENT35. It is needless to state that if any of the persons named in the FIR are absconding, then appropriate proceedings be initiated in that regard for declaring them as proclaimed absconders.
36. With the above observations and directions this petition is disposed of.
(J.B.PARDIWALA, J.) Manoj Page 24 of 24