Karnataka High Court
Darshan T S vs The State Of Karnataka on 10 December, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
Crl.P. NO. 7706/2015
BETWEEN:
DARSHAN T S
S/O. T.G. SAMPATH,
AGED ABOUT 44 YEARS,
R/AT O-37, CONCORD SILICON VALLEY,
NEELADRI ROAD, NEXT TO WIPRO GATE NO.16,
ELECTRONIC CITY, PHASE-I,
BANGALORE-560 100.
... PETITIONER
(By Sri: HONNAPPA S, ADV.)
AND
THE STATE OF KARNATAKA
SHO MADIVALA POLICE STATION
BANGALORE-560068.
... RESPONDENT
(By Sri: K. NAGESHWARAPPA, HCGP)
CRL.P FILED U/S.438 CR.P.C BY THE ADVOCATE
FOR THE PETITIONER PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO ENLARGE THE PETR. ON
BAIL IN THE EVENT OF THEIR ARREST IN
CR.NO.1938/2015 OF MADIVALAL P.S., BENAGALURU FOR
THE OFFENCE P/U/S 26 OF JUVENILE JUSTICE ACT AND
ETC.
THIS PETITION HAVING BEEN HEARD AND
RESERVED ON 08.12.2015, AND COMING ON FOR
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PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING:
ORDER
The present bail application is filed under Section 438, Cr.P.C. seeking anticipatory bail relating to a criminal case in Crime No.1938/15 on the file of the respondent-Madivala police station, a case registered under Section 26 of the Juvenile Justice Act, 2000, (hereinafter referred to as the Act, for brevity).
2. The allegation against the petitioner is that he is running a bakery and sweet stall and had engaged minor children to work in the said bakery and the work so done by the minor children was hazardous in nature. It is alleged that the children employed by the petitioner were below the age of 16 years and they were made to work right from the morning till night, and the atmosphere was not congenial for doing work.
3. Learned HCGP has vehemently opposed the bail application on the ground that prima facie case is forthcoming in regard to the role of this petitioner 3 as per the first information lodged by Smt.Radha, a member of Child Welfare Committee. Therefore he has requested this court to dismiss the bail application.
4. Petitioner is a resident of Bengaluru City and has undertaken to obey any condition that may be imposed upon him. The offence alleged against him is neither punishable with death nor with imprisonment for life and is exclusively triable by the CMM Court. The maximum punishment, if found guilty, could extend upto 3 years. In the light of the same, the petitioner has to be released on bail.
5. Accordingly, the petition filed under Section 438, Cr.P.C. is allowed and anticipatory bail is granted to the petitioner, subject to the following conditions:
a) Petitioner shall be released on bail in the event of his arrest in Crime No.1938/15 of Madivala police station on executing a personal bond in a sum of Rs.50,000/-4
with one surety for the like sum to the satisfaction of the concerned I.O.
b) He shall co-operate with the I.O. in conducting further investigation, without fail.
c) He shall not hold out threats to the prosecution witnesses or lure them in any manner.
d) Petitioner shall not involve in any criminal activities.
e) He shall attend the respondent police station once in a week on every Sunday between 9.00 a.m. and 5.00 p.m. without fail till the submission of final report.
f) If the petitioner violates any one of the conditions, the prosecution is at liberty to seek for cancellation of bail.
6. On seeing the volume of work in Madivala police station, this court feels that most of the police stations in Bengaluru City are over burdened and as a result of the same, requisite attention cannot be given to investigate the cases effectively. 5
7. The case on hand is registered by Madivala police station of Bengaluru City. The serial number of the case is FIR No.1938/2015. As on 16.10.2015 the day on which case was registered by the respondent Madivala Police Station, 1,937 cases of various types had been registered in Madivala police station. On seeing the volume of work in Madivala police station, this court is worried as to whether the police personnel could really conduct an effective, thorough and timely investigation of the cases registered in the year 2015 and those criminal cases of earlier years in which investigation is not yet concluded.
8. The Commissioner of Police, Bengaluru City, had been directed to furnish the details of the number of cases registered in various police stations of the Bengaluru Police Commissionerate from 1.1.2015 upto 30.11.2015, staff strength of each police station (both sanctioned strength and actually existing vacancy position) and the types of cases registered during this period. The purpose of soliciting this information is to really find out as to whether the police personnel 6 working in the police stations of the city could really conduct an effective, thorough and timely investigation keeping in mind the interest of the victim/s of crime.
9. The data furnished by the Commissioner of Police through the Additional Commissioner of Police (Crime) discloses that the Commissionerate of Bengaluru City is divided into Seven (7) divisions and each division has a Deputy Commissioner of Police. The total number of cases registered in the police stations of seven sub- divisions from 1.1.2015 upto 30.11.2015 is 44,294. The total sanctioned strength of the police personnel of 105 police stations of Bengaluru City is 9,601 and the actual working strength is only 6,914 resulting in 2,687 vacancies. The vacancy position is 28% of the sanctioned strength.
10. There are in all 105 police stations in Bengaluru City. Out of these 105 police stations, 66 police stations have more than 300 cases each as on 30.11.2015. As on 30.11.2015 total number of cases registered in 7 Madivala police station alone is 2,200. The sanctioned strength of Madivala police station is 106 and out of them 12 are vacant, whereas in Commercial Street police station total number of cases registered upto 30.11.2015 is 218 with sanctioned strength of 121 and out of them 32 posts are vacant. In Mahadevapura Police Station as many as 667 and in Banaswadi Police Station as many as 780 cases respectively have been registered from 1.1.2015 upto 30.11.2015 with sanctioned strength of 88 each out of which 20 and 15 posts respectively are vacant.
11. Almost all the 13 police stations in South East Division have in all 9,394 cases registered upto to 30.11.2015 with sanctioned strength of 1,178 and vacancy of 272. 1,082 cases have been registered in MICO layout police station of South-east Division upto 30.11.2015 with actual sanctioned strength of 91 only. Similarly HSR Layout police station has 982 cases and sanctioned strength is 88 only; out of this 14 posts are vacant. In the North East Division, there are 10 police 8 stations with a total sanctioned strength of 871 and out of them, 267 are vacant. The total number of cases registered upto 30.11.2015 in all these 10 stations is 2,463. Thus the average of cases registered in each police station in North East Division would be roughly about 250 and this appears to be manageable.
12. One should not forget that soon after registration of the case, investigation is to be taken up to arrest the accused, if absolutely required, custodially interrogate the accused if necessary, recover the incriminating articles, record the statements of witnesses, draw up requisite mahazars like recovery mahazar, seizure mahazar, inquest, rough sketches, etc.. At times the police will have to solicit the assistance of the Taluk Executive Magistrate to record the statement of the victim who is about to die or in anticipation of death, send the incriminating articles to Forensic Science Laboratory/ Chemical Analyst or doctor to conduct test and to submit opinion.
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13. In certain dacoity or robbery cases, police will have to take the accused to several places to recover robbed money/article. Production of accused before the Court with suitable report seeking the police or judicial custody involves substantial work. Whenever bail applications are filed in criminal courts or High Court, police will have to submit status report or objections. In order to take the case to its logical end, police will have to conduct a thorough and diligent investigation without any undue delay.
14. Let us assume that names of few accused are not found in the First Information but their names came to the knowledge of the police only during investigation. The police will have to satisfy the Court that the statements of material witnesses were recorded without undue delay. If statements of material witnesses are recorded belatedly, it will be argued on behalf of the accused that the statements were recorded after due deliberation and hence do not inspire the confidence of the Court. And if the court comes to such a conclusion, 10 normally benefit of doubt would be given to accused, of course if other attending circumstances are also not effectively proved.
15. If there is no effective, thorough, dispassionate and timely investigation, it would be very difficult to prosecute the cases before the criminal courts and the inevitable consequence is that even in cases of grave offences, courts will have to acquit the accused. Because of this, many a time police officers feel being let down and their morale will come down.
16. Investigating a criminal case is not an easy or an ordinary work. It requires thorough professionalism and professionalism can be achieved only through effective training. Many offences have become hi-tech, in the sense that mobile phones and electronic devices are used to hatch conspiracy and messages are sent through SMS and e-mail. Digital evidence plays a vital role in many cases. Seizure of hard discs, collection of call details and such other digital materials require 11 thorough knowledge of Digital Forensic Science. Proof of such digital evidence requires stricter evidence as per Sections 65-A and B of Evidence Act. The protocols in proving digital evidence are made stricter.
17. Police personnel require intermittent training not only about conducting investigation in conventional crimes, but also in respect of cyber crimes, cases of terrorism, offences against children, cases relating to narcotic drugs and psychotropic substances, etc. To sensitize the police officers in the cadre of P.S.I and above, Police Training Colleges are required at divisional head quarters, since a P.S.I in Bidar finds it difficult to come to Bengaluru to undergo training. It is high time that sufficient focus is given to train the police officers on various aspects of policing and investigation, keeping in mind the law laid down by the Hon'ble Apex Court and this Court. Updating of training manuals and Police Manual is also the need of the hour.
18. Each police station in Bengaluru City is headed by a police officer of the rank of Inspector (Circle 12 Inspector) assisted by 2-4 Police Sub Inspectors, 4-6 Assistant Sub Inspectors, 6-8 Head Constables and the remaining personnel being constables. Each station is entrusted to look after both the law and order situations as well as investigation of crimes. Many a time, substantial time is consumed in maintaining law and order. Many public functions will be arranged in various parts of the city requiring deputation of many police personnel. Every now and then, VIPs and VVIPs will be coming to the city and this also requires deputation of sufficient civil police attached to the police stations. Apart from this, elections will be held to Assembly, Parliament and local bodies and civil police will also be deputed to such elections. As a result of all these works, many a time, investigation takes a back seat.
19. Apart from this, many police officers/ officials either having conducted the investigation or being a part of investigation, are expected to attend various criminal Courts to tender evidence and their presence in courts is essential. A Police officer who conducted the 13 investigation here at Bengaluru two years ago might be working in Belagavi and he has to tender evidence at Bengaluru and it may require at least two days and his absence for two days at Belagavi will have a greater effect in regard to the investigation of a case already taken up by him there. Fortunately Traffic Wing is separated here and many other places. Similarly demarcation of police in each station for investigation is an absolute necessity, lest, the desired results cannot be achieved.
20. In 'THE HINDU' daily English newspaper Bengaluru edition dated 2.12.2015, it is reported that on 1.12.2015, the Hon'ble Minister of Home, Government of Karnataka, gave a surprise visit to Madivala Police Station and noticed many inadequacies and even assured to take suitable steps at the earliest to set right the deficiencies. This attitude of the Hon'ble Minister will be a step in aid in improving the policing in Bengaluru to a greater extent. Effective law and order situation is an absolute necessity in any welfare society 14 and this helps towards a comprehensive growth in the society.
21. The data provided discloses that 40 dacoity cases, 285 robbery cases, 338 chain snatching cases, 350 house-break thefts (day), 1,054 house-break thefts (night), 2,343 home thefts, 5,356 motor vehicle thefts and 688 ordinary theft cases have been registered in all the city police stations upto 30.11.2015 from 1.1.2015. Out of this, 34 dacoity cases, 191 robbery cases, 272 chain snatching cases, 146 house-break thefts (day), 425 house-break thefts (night), 708 home thefts, 1580 motor vehicle thefts and 688 ordinary thefts have been detected.
22. Taking into consideration the various types of offences reported in the police stations of the city and their gravity, this court is of the considered opinion that the authorities need to seriously think of bifurcating investigation from regular law and order and thus enhance the credibility of the investigation. This would indeed drastically cut down the crime. 15
23. One should not forget that a thorough investigation is the foundation of an efficient criminal justice system. If this gets weakened, edifice of the criminal justice system becomes weak and thus endangers the public peace and tranquility. The purpose of highlighting all these is not to find fault with the Government, but to bring to its notice that some urgent steps are required to bring more credibility to the police system in the State in general and Bengaluru City, in particular.
24. Experience tells us that a police station even with a working strength of 90-100 cannot effectively investigate more than 300 cases a year. The upper limit of a police station insofar as number of cases could be 300 and as already observed, with separate investigation wing in each police station.
25. It is also noticed that in a few police stations the total number of cases registered upto 30.11.2015 are as follows:
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Police Station No. of cases Sanctioned staff Seshadripuram PS 230 116 Vyalikaval PS 233 106 Chikkpet PS 155 111 Malleswaram PS 135 339 Jalahalli PS 169 81 Shankarpura PS 121 63 Tyagarajanagar PS 174 83 Therefore, the authorities concerned will have to seriously think of re-drawing the jurisdiction of some police stations to provide sufficient work based on the existence of staff strength. But the total number of cases registered in all the police stations in the city from 1.1.2015 upto 30.11.2015 definitely indicates the immediate necessity of opening several new police stations.
26. It is unconceivable as to how Madiwala police station with a sanctioned strength of hardly 106 could handle 2,200 cases registered upto 30.11.2015. Similar is the case with MICO Layout police station, HAL police station, HSR Layout police station and other police 17 stations in which cases registered are more than 400 upto 30.11.2015.
27. At the same time, recruitment of Sub Inspector and constables at regular intervals is also an absolute necessity so as to see that the vacancy positions do not remain unfilled for a long time. It need not be reiterated that the selection procedure evolved by the Ministry of Home, Government of Karnataka, to select constables and Sub Inspectors is the most transparent one and the same is being followed by many other states.
28. In the case of MALIK MAZHAR SULTAN vs UTTAR PRADESH PUBLIC SERVICE COMMISSION & OTHERS reported in [2006] 9 SCC 507 (CIVIL APPEAL NO.1867/06), the Hon'ble apex court has elaborately discussed the issue of selection of civil judges (Junior Division) and district judges by way of direct appointment and to fill up the vacant posts of judicial officers at regular intervals. In fact, a calendar in this regard is fixed in the very judgment itself. The said decision of the Hon'ble apex court would be of great 18 help to the Department in prescribing the dates within which applications will have to be called for, examination/test to be held and conclusion of the selection process in the form of appointments, every year. The relevant direction given by the Hon'ble apex court to all State Governments, Union Territories and High Courts is relevant and the same is found in paragraph 23 of the judgment. It is reproduced below:
'23. It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that the system works automatically and there is no delay in filling up of vacancies. The dates for taking these steps can be provided for on the pattern similar to filling of vacancies in some other services or filling of seats for admission in medical colleges. The schedule appended to the regulations 19 governing adhered to every year. The exception can be provided for where sufficient number of vacancies do not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All the State Governments, the Union Territories and/or the High Courts are directed to provide the time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled.
All the State Governments, the Union Territories and the High Courts are directed to file within three months details of the time schedule so fixed and date from which the time schedule so fixed would be operational.'
29. It need not be reiterated that the police here at Bengaluru are facing many challenges in view of different types of crimes like terrorism, passport violations in view of large number of foreigners studying here, offences connected with narcotic drugs, arms, and offences against women and children, etc.
30. It is felt that the authorities concerned, in consultation with the Hon'ble Minister for Home will 20 have to seriously think of having an Expert Committee to scientifically work out the allocation of work of each police station defining the territorial jurisdiction, staff strength, de-linking investigation from law and order, establishment of an excellent Training Centre here at Bengaluru, and also opening of new police stations at the earliest and such other matters incidental to these aspects.
31. It is useful to refer to the decision of the Hon'ble apex court in the case of STATE OF GUJARAT .v. KISHANBHAI & OTHERS ([2014] 5 SCC 108) wherein good number of directions have been given to all the States and Union Territories. It is made clear that lapses by the investigating and prosecuting agencies would be viewed seriously while dealing with a criminal case relating to rape and murder of a six year old girl which ended in acquittal. The Hon'ble apex court has directed that on the completion of investigation in criminal cases, the prosecuting agency should apply its independent mind and require all shortcomings to be rectified, if necessary by req uiring further investigation. 21 The Home Department of every state is directed to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A Standing Committee of senior officers of the police and Prosecution Departments should be vested with the aforesaid responsibility.
32. The observation made by this court is in continuation of the directions given by the Hon'ble apex court in the case of KISHANBHAI (supra). It need not be reiterated that the decision of the Hon'ble apex court in the said case is a binding precedent in terms of Article 141 of the Constitution of India and therefore, it will have to be followed scrupulously. The directions so given are reproduced below:
The following directions are issued:
(i) It is thus directed that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented 22 during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigours of criminal prosecution.
By following the above procedure, in most criminal prosecutions, the agencies concerned will be able to successfully establish the guilt of the accused.
(ii) The Home Department of every state is directed to examine all orders of acquittal and to record reasons for the failure of each prosecutin case. A Standing Committee of senior officers of the police and Prosecution Departments should be vested with the aforesaid responsibility. The consideration at the hands of the above Committee, should be utilized for crystallizing mistakes committed during investigation, and/or prosecution, or both. The Home Department of eovery State Government will incorporate in its existing training programs for junior investigation/prosecution officials course- content drawn from the above consideration. The same should also constitute course- content of refresher training programs for senior investigating/prosecuting officials. The above responsibility for preparing training programs for officials should be vested ion the same Committee of senior officers referred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programs. The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgment of courts, and on the basis of experiences gained by the Standing Committee while examining failures, in unsuccessful prosecution of cases.
(iii) It is directed that the above training program be put in place within 6 months. 23 This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence when they are made liable to suffer departmental action for their lapses.
(iv) On the culmination of criminal case in acquittal, the investigating/prosecuting official(s) concerned responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the official concerned may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on the culpability. Hence, the Home Department of Every State Government is directed to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months. The Home Department of the State of Gujarat, will identify the erring officers in the instant case, and will take appropriate departmental action against them, as may be considered appropriate, in accordance with law.
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(v) A copy of the instant judgment shall be transmitted by the registry of the Supreme Court, to the Home Secretaries of all State Governments and Union Territories, within one week. All the Home Secretaries concerned, shall ensure compliance with the directions recorded above. The records of consideration, in compliance with the above directions, shall be maintained.
33. This court is optimistic that the authorities concerned would do their best to galvanize the existing policing in Bengaluru and also do such similar exercises stage by stage in the State also. This would not only enhance the credibility of the system, but also instills more confidence in the mind of the public.
34. Office is directed to send a copy of this order to:
1) The Principal Secretary, Department of Home, Government of Karnataka,
2) The Director General of Police and Inspector General of Police,
3) The Commissioner of Police, Bengaluru, for their reference, at the earliest.
Sd/-
JUDGE vgh*