Gauhati High Court
Amitava Sinha vs The State Of Assam And Anr on 5 June, 2015
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IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Crl. Petition No.516/2014
Mr. Amitava Sinha
S/o- Shri A.M. Sinha
R/o- Police Reserve Quarter,
under Paltanbazar P.S.,
Kamrup (M), Guwahati.
....Petitioner.
-Versus-
1. The State of Assam.
2.Sri Gurmeet Singh
S/o- Late Hari Singh
R/o- Bhour Camp under Satwari P.S.
Dist.- Jammu, Jammu and Kashmir.
...... Respondents.
BEFORE
HON'BLE MR. JUSTICE C.R. SARMA
For the Petitioner : Mr. D.K. Mishra, Sr. Advocate,
Mr. J. Roy, Advocate,
Mr. S. Borthakur, Advocate
Ms. S. Kakoti, Advocate
Mr. R. Hazarika, Advocate
Mr. C. Chakraborty, Advocate.
For the respondent No.1 : Mr. K. Munir, Additional Public
Prosecutor, Assam,
For the respondent No. 2 : Mr. A.K. Bhuyan, Advocate
Mr. I Krishnatraiya, Advocate
Crl. Petition No.516/2014
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Ms. P. Pathak, Advocate
Mr. M. Borah, Advocate
Mr. B. Bora, Advocate.
Dates of hearing : 24/03/2015 and 26.03/2015
Date of delivery of
judgment & order : /06/2015
JUDGMENT & ORDER (CAV)
By this application, filed under Section 482 read with Section 397
of the Code of Criminal Procedure (for short, Cr.P.C.), and Article 227 of
the Constitution of India, the petitioner, who is a Police officer in the rank
of Additional Superintendent of Police (Crime), City Guwahati and an
accused person in CR Case No. 3451/2013, under Section 325/331 of the
Indian Penal Code (for short, IPC), pending before the learned Additional
Chief Judicial Magistrate, Kamrup, Guwahati, has prayed for quashing the
said proceeding, on the grounds, amongst others, that the allegations,
brought against the petitioner are false, concocted and that the
proceeding is bad for want of sanction, as required by Section 197
Cr.P.C.
(2) I have heard Mr. D.K. Mishra, learned Sr. Counsel, assisted by Mr.
J. Roy, learned Counsel, appearing for the petitioner, Mr. K. Munir,
learned Additional Public Prosecutor for the State respondent No. 1 and
Mr. A.K. Bhuyan, learned Counsel, appearing on behalf of the respondent
No. 2 (complainant). Written arguments have been submitted on behalf
of both the parties.
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(3) The material facts, as may be required for disposal of this
petition, may, in brief, be stated as follows:
On 29.11.2012, one Mr. Prakash Singh lodged an FIR with the
Basistha Police Station, alleging that on the same day, at about 9.20
P.M., his son Mr. Ajit Singh (hereinafter called the 'deceased') was shot
dead by some unknown persons. The said FIR was registered as Basistha
P.S. Case No. 771/2012, under Section 302 IPC read with Section
25(1)(A) of the Arms Act and Mr. L.N. Deka, SI of Police was entrusted
with the investigation of the said case.
During the investigation, Police came to the clue that one Mr. Ajit
Singh, made a conspiracy with Mr. Gurbez Singh Naloa @ Onkar Singh
and Mr. Gurmit Singh (respondent No. 2 i.e. the complainant in the
present case) to eliminate the deceased and accordingly, the I.O.
arrested Sri Ajit Singh and Sri Gurbej Singh on 17.12.2012. Police came
to know about the presence of Sri Gurmit Singh (hereinafter called the
complainant) (one of the accused persons) at Jammu and requested the
Superintendent of Police (J & K) to apprehend the complainant.
Accordingly, he was arrested and the I.O. of the case brought him from
Jammu to Guwahati and produced before the learned Chief Judicial
Magistrate, Kamrup, Guwahati seeking remand for police custody for 12
(twelve) days.
(4) The learned Chief Judicial Magistrate, Kamrup, Guwahati, by his
order, dated 17.06.2013, passed in Basistha Police Case No. 771/2012,
granted 8 (eight) days custody and accordingly, he was taken in Police
custody for interrogation.
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(5) On 20.06.2013, one Mr. Rabindrar Pal Singh, a friend of the
complainant, filed a petition before the learned SDJM (S) No. 1, Kamrup,
Guwahati, stating, therein, that he came to know from the complainant
that Sri Amitava Sinha subjected him to torture, causing fracture of upper
arm of the complainant and uttered abusive language with racial slur. It
was also alleged that the petitioner subjected the complainant to
custodial torture on 17.06.2013 and 18.06.2013 and put petrol in his
anus and thus, used third degree torture in custody.
On receipt of the said complaint, Court directed the I.O. to
produce the complainant before the Court, on 21.06.2013, with a report
regarding alleged custodial torture.
(6) On 21.06.2013, Ms. Inderpal Kaur, wife of the complainant, also
filed a petition (Petition No. 413/2013), alleging that her husband i.e. the
complainant was assaulted with hockey stick in his arms as well as legs
and that petrol was put in his anus. The I.O., on 21.06.2013, after
causing medical examination of the complainant, produced him before
the Court along with the medical report.
(7) The learned SDJM (S), Kamrup, Guwahati, not being satisfied
with the explanation, submitted by the I.O. and the Medical Report and
upon noticing the marks of injuries on the body of the complainant and
also considering the allegations of torture, by his order, dated
21.06.2013, refused to again remand him to police custody and
accordingly, sent the complainant (i.e. accused) to judicial custody.
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The Central Jail Authority was directed to provide necessary
medical treatment and conduct medical examination with regard to the
injuries of the complainant. Direction was also made for recording the
statement of the accused person and the matter was posted, on
24.06.2013, for production of the accused person and the medical report.
Accordingly, on 24.06.2013, the accused was produced before the Court
and his statement was recorded.
(8) The accused, i.e. the complainant, in his statement, made before
the Magistrate, stated that, in the Basistha Police Station, the petitioner
and three other Police personnel (unknown) had beaten him with hockey
stick in his hand and feet causing injury to his right shoulder bone and
legs. He also alleged that the petitioner had asked him to put off his pant
(trouser) and poured petrol in his anus. He further alleged that one of
the Police Officer had poured petrol in his penis for which he had no
other option except crying. According to the complainant, he was taken
to another Police Station, wherein he met Sri Rabinder Pal Singh to
whom he had narrated everything. He was again examined on
24.06.2013 and 29.06.2013 in the Gauhati Medical College Hospital (For
short, GMCH) wherefrom some medicines, including ointment for local
application were prescribed. He was released from custody after expiry of
90 days and thereafter, he got himself examined in the GMCH and two
other recognized hospitals wherein MRI and X-Ray were done.
(9) On his release, the complainant, filed a complaint case before the
learned Chief Judicial Magistrate, Kamrup (M), on 08.10.2013, alleging,
therein, that during his custody, he was assaulted by the petitioner and
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three others Police personnel (names not known) by hockey stick as a
result of which he sustained severe injuries including fracture, swelling
and black spot etc.
He also alleged that the petitioner, with the help of other two
Police officials had poured petrol in his anus as a result of which he
sustained severe burning sensation in his private parts. In the said
complaint, he further alleged that the petitioner had threatened him with
dire consequences, in the event of disclosure of anything to others.
(10) On receipt of the said complaint, the learned Magistrate recorded
the statement of the complainant under Section 200 Cr.P.C. and two of
his witnesses under Section 202 Cr.P.C. and finding a case under
Sections 325 and 331 IPC took cognizance of offence under Sections 325
and 331 IPC against the petitioner and issued summons for his
appearance.
(11) Aggrieved by the said proceeding, the petitioner has come up with
this quashing petition.
The contention of the petitioner is that, he, being a Senior Police
Officer, was supervising the investigation of the Basistha P.S. Case No.
371/2012 relating to the murder of the deceased and had interrogated
the complainant, on 17.06.2013 at 10.30 P.M. in Basistha Police Station.
According to the petitioner, the allegation, made against him, regarding
custodial torture is false and concocted.
(12) According to the petitioner, as he was discharging his official
duty, sanction under Section 197 Cr.P.C. was required and as such,
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taking of cognizance, without sanction was bad in the eye of law. Hence,
the petitioner has prayed for quashing the proceeding.
(13) Mr. D. K. Mishra, learned Sr. Counsel, appearing for the
petitioner, referring to the Basistha P.S. Case No. 771/2012, has
submitted that the complainant, being one of the accused persons, in
connection with murder of the deceased, he was arrested and
interrogated in a routine duty and that the petitioner, being the
supervising Officer had interrogated the complainant, on 17.06.2013 in
the Police Station. It is also submitted that, as per the medical report,
dated 24.06.2013, X-Ray was done in respect of the knee joints and
hands and all were found in normal condition except some tiny bruises
and simple injuries. It is also submitted that though the injury report
dated 20.09.2013, issued by a private nursing home, namely, GNRC,
indicates fracture in the acromion process with possible dislocation of the
acromio clavicular joint, there are discrepancies in the medical report
negating the allegation of torture.
(14) It is also contended, on behalf of the petitioner, that the medical
reports, dated 18.09.2013, 20.09.2013 and 25.09.2013, do not indicate
any fracture of the hand as alleged in the petition. Therefore, it is
submitted that no case under Section 325 IPC, has been made out
against the petitioner.
(15) With regard to the offence under Section 331 IPC, the learned
Senior Counsel, for the petitioner, has submitted that the complainant, in
his statement, did not whisper anything to attract the ingredients of
Section 331 IPC. It is contended that, though the complainant stated that
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the petitioner and three other persons had assaulted him during the
custody period, no ingredients of the offence under Section 33.1 IPC has
been disclosed. Therefore, it is submitted that no case under Section 331
IPC has been made out against the petitioner.
(16) With regard to the allegation of assaulting with hockey stick on
the hands and knees, it is submitted that as per the medical report,
dated 19.06.2013, no physical injury was found and that the injuries
mentioned in the orders, dated 21.06.2013 and 24.06.2013, passed by
the learned Magistrate, being tiny injuries, could not have been caused
by use of hockey stick. It has also been contended that the said injuries
could have been self inflicted injuries caused due to rubbing of the body
against any hard substance with a view to bring false allegation. It is
also submitted, on behalf of the petitioner, that the learned Magistrate's
decision to postpone issuance of process, immediately after examination
of the complainant, under Section 200 Cr.P.C., and examination of
witnesses, under Section 202 Cr.P.C., indicates that he was not satisfied
with the allegations, brought against the petitioner and that the order,
dated 11.02.2012, does not reveal any reason for change of the mind of
the Magistrate. It is also submitted that, in view of failure to proceed
against the other three Police Officers for want of their identity, the
learned Magistrate ought to have referred the matter for enquiry by
higher Police Officer under Section 156(3) Cr.P.C.
(17) Regarding sanction, under Section 197 Cr.P.C., the learned Sr.
Counsel for the petitioner, has submitted that the allegations, brought
against the petitioner relates to discharge of his official duty and the
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petitioner, being a public servant not removable from his office by or with
the sanction of the government, previous sanction, as required under
Section 197 Cr.P.C., was necessary. It is also submitted that the
allegations, brought against the petitioner, being in the nature of
violation of the direction made in the case of D.K. Basu, the learned
Magistrate was authorized for drawing contempt proceeding against the
concerned Police Officer, instead of initiating a criminal proceeding for
the offences under the Indian Penal Code.
(18) Referring to the complaint, made by the wife of the complainant,
before the National Human Rights Commission, the learned Sr. Counsel
has submitted that the said complaint was dismissed by the National
Human Rights Commission, on the ground that the allegations, made,
therein, could not substantiate the allegations. In view of the above, it is
submitted that the complaint against the petitioner is motivated with
malice. The learned Sr. Counsel, for the petitioner, has strenuously
argued that the complainant, who is one of the accused persons in the
sensational Ajit Singh (deceased) murder case, in collusion with others,
has brought false allegations against the petitioner for the purpose of
derailing and frustrating the ongoing investigation in the said murder
case by unnecessarily harassing the present petitioner, who was
supervising the investigation of the said murder case.
In view of the above, the learned Sr. Counsel for the petitioner
has submitted that the entire facts and circumstances of this case
sufficiently indicates that false, motivated and concocted allegations have
been brought, against the petitioner, with malafide intention to derail the
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investigation in the said murder case and as such, it is submitted that
the said proceeding, for ends of justice and also to prevent miscarriage
of justice, is liable to be quashed.
(19) In support of his contention, the learned Sr. Counsel, for the
petitioner, has relied on the following decisions:
1. Shreekantiah Ramayya Munipalli -Vs.- State of Bombay,
reported in AIR 1955 SC 287;
2. Amrik Singh -Vs.- State of Pepsu, reported in AIR 1955
SC 309;
3. Matajog Dobey -Vs.- H.C. Bhari, reported in AIR 1956
SC 44;
4. State of Orissa through Kumar Raghavendra Singh -
Vs.- Ganesh Chandra Jew, reported in (2004) 8 SCC 40;
5. Sankaran Moitra -Vs.- Sadhna Das and Another,
reported in (2006) 4 SCC 584;
6. Om Prakash and Others -Vs.- State of Jharkhand,
reported in (2012) 12, SCC 72.
(20) Refuting the said argument, advanced by the learned Sr. Counsel,
appearing for the petitioner, Mr. A.K. Bhuyan, learned Counsel for the
respondent No. 2, referring to the entire facts and circumstances of this
case, has submitted that the complainant, on the first date of his
production before the Court i.e. on 17.06.2013 was examined in the
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Mahendra Mohan Choudhury Hospital ( for short, MMCH), Guwahati i.e.
before taking him to police custody, bore no physical injury, but,
subsequently i.e. during police custody, it was found that he sustained
the injuries, found during his examination on 19.06.2013 due to the
torture meted out to him in the Police custody.
It is submitted that though the petitioner has claimed to have
interrogated the complainant, on 17.06.2013 only, there is specific
allegation indicating that the petitioner had brutally assaulted him
causing injury to his person and thus, custodial torture was committed.
It is also submitted that, on 19.06.2013, the complainant was
taken to MMCH for providing treatment and the following medicines were
prescribed to him-
i. Injection TT (Antibiotic)
ii. Injection Dielophena (Pain Killer)
iii. Tablet Amoxiclav (1625 Antibiotic)
iv. Tablet Achilofina (Pain killer)
v. Tablet tripsian- (Hymotrypsin)
vi. Tab Pan 40
The advice slip, dated 19.06.2013, issued from the MMCH, clearly
reflects the following clinical findings of the Doctor.
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Right acromion process fracture, physically assaulted on
19/06/13.
Following advices were given by the Doctor at the Hospital:
i. Modified shoulder immobilization is to be applied.
ii. Patient will buy the splint later (not available now).
iii. Patient has refused X-ray.
iv. Tab Achilofena Prachetamol.
v. Tab pantoplajole.
vi. Tab surnled.
vii. Keep time elevated.
viii. Require further management.
ix. Inform if any swelling pain or colour change.
x. Review in orthopaedic for immobilization application and X-
ray confirmation.
On behalf of the respondent No. 2, it is stated that on 19/06/13 at
MMC Hospital, X-ray was done and Modified shoulder immobilization was
put by the Doctors. Doctor advised for fitting splint. The Medical Officer
advised " review in orthopaedic for immobilization application & X-ray
confirmation").
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From the above, it indicates that the complainant, who was not
found to have sustained any injury, on the 1st date of his medical
examination i.e. before taking him into Police custody, was examined on
19.06.2013 and this examination clearly shows that he sustained several
injuries requiring application of ointment and other medicine, which
sufficiently indicates that the petitioner sustained the said injuries, as
indicated in the medical report dated 19.06.2013, issued from the MMCH,
Guwahati. This indicates that the complainant sustained the said injuries
during the police custody.
It is also submitted that though the petitioner had admitted that
he had interrogated the complainant in the Police Station, in his capacity
as the supervising officer, there is nothing, on-record, to show that he
was authorized to interrogate the complainant in the said case.
Admittedly, S.I. Mr. N Deka was the Investigating Officer and there is no
allegation against him.
The learned Counsel for the respondent has submitted that the
said medical reports clearly support the allegation of custodial torture,
which is not permitted by law.
(21) The learned Counsel for the respondent No. 2, referring to the
orders, dated 17.06.2013, 19.06.2013 and 21.06.2013, passed by the
learned Magistrate and the observation made therein, has submitted that
the learned Magistrate, who remanded the accused on 17.06.2013, did
not notice any injury on the body of the accused complainant, but, as
revealed from the order, dated 21.06.2013, the learned Magistrate, upon
production of the complainant, noticed some injuries including swelling
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over hands, wrist, black marks over the whole body. The learned
Magistrate recorded that the complainant made allegation of torture
including pouring of petrol into his anus. It is also submitted that in view
of the said allegations regarding torture and also personally noticing the
injuries, on the person of the complainant, the learned Magistrate
refused further police custody and remanded the complainant to judicial
custody. It is contended that the complainant, in his statement, recorded
on 24.06.2013 i.e. during the judicial custody, clearly stated that he was
beaten up by the petitioner with hockey stick and that petrol was poured
on his private part.
(22) The learned Counsel for the respondent No. 2 further submitted
that the medical reports, issued from the GMCH are contradictory,
inasmuch as the medical report, dated 29.06.2013, indicates the
existence of injury on the person of the complainant, requiring
application of medicine including ointment. It is also submitted that the
petitioner, on being released from custody, got himself medically
examined and treated in reputed private nursing home i.e. GNRC. It is
also submitted that besides pain killers and antibiotics, ointment, namely,
Sucralaxo Ointment, which is a special medicine to be applied only in
rectum and Lactotore Syrup, for the purpose of softening of stool, were
prescribed. It is submitted that the said medical advice implies that he
sustained injuries, including fracture and injury in his private parts.
(23) The learned Counsel for the petitioner, referring to the said
injuries, has strongly argued that the complainant, who was an accused
in connection with the Ajit Singh murder case, was taken into police
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custody, on remand, in good health, but during the interrogation, he was
subjected to inhuman torture for obtaining information regarding the said
murder. Therefore, it is submitted that there is sufficient materials in the
statement, made by the complainant in his complaint and the said
medical reports to show that he was subjected to torture during the
custody period for extracting information in connection with the said
murder case.
(24) It is further contended, by the learned Counsel for the respondent
that there could be no other reason, for torturing the complainant,
except extracting information in connection with the said murder case.
Therefore, it is submitted that the allegations, brought against the
petitioner, prima facie discloses the ingredients of the offence under
Section 331 IPC.
(25) Regarding the injuries, sustained by the complainant, it is
submitted that the complainant was assaulted on 17.06.2013 for which
he was required to undergo medical treatment for more than 20 days
and that as per the medical reports dated 30.01.2013, issued from the
GMCH as well as the GNRC and the Matrix Diagnostic Centre, there is
clear evidence to show that the complainant sustained fracture injury. In
view of the above, it is submitted that a prima-facie case to go for trial,
under Sections 331 and 325 IPC, has been made out. It is also submitted
that there being a prima-facie case, it is not the stage to determine the
truth in the allegations, inasmuch as the complainant would substantiate
the allegations by adducing evidence at a later stage.
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(26) Regarding sanction under Section 197 Cr.P.C., the learned Counsel
for the respondent, has submitted that the act of committing custodial
torture, including throwing petrol into private parts, has no relation with
official duty. It is also submitted that the petitioner, not being the
Investigating Officer, had no authority to deal with the complainant, not
to speak of assaulting him with hockey stick and pouring petrol on his
private part. It has been strenuously argued by the learned Counsel for
the respondent that the allegation of assault with hockey stick and
pouring petrol on private parts of the accused person, in the police
custody, can not be treated as an act, connected with the discharge of
official duty. Therefore, it is submitted that the nature of the allegations,
brought against the petitioner, does not warrant necessity of obtaining
sanction under Section 197 Cr.P.C.
(27) Supporting the impugned order, passed by the learned Magistrate,
Mr. A K Bhuyan, learned Counsel, appearing for the respondent, has
submitted that in view of the said attending facts and circumstances, the
learned Magistrate committed no error by taking cognizance of offences,
under Sections 325/331 IPC, against the petitioner and that there is no
merit in this petition for quashing the proceeding, aforesaid.
(28) In support of his contention, the learned Counsel for the
respondent has relied on the following decisions.
1. D.K. Basu -Vs.- State of W.B., reported in (1997) 1
SCC 416;
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2. Ajay Kumar Das -Vs.- State of Jharkhand and
Another, reported in (2011) 12 SCC 319;
3. State of Orissa -Vs.- Debendra Nath Padhi, reported
in (2005) 1 SCC 568;
4. Krishnan and Another -Vs.- State represented by
Inspector of Police, reported in (2003) 7 SCC 56;
5. Munshi Singh Gautam (Dead) and Others -Vs.- State
of M.P. reported in (2005) 9 SCC 631;
6. Nilabati Behera (Smt) alias Lalita Behera (through
the Supreme Court Legal Aid Committee) -Vs.-
State of Orissa and Others, reported in (1993) 2 SCC
746;
7. Sushil Kumar Barua -Vs.- Golok Chandra Kalita,
reported in 2008 (1) GLT 714.
(29) Having heard the learned Counsel, appearing for both the parties,
I have carefully perused the materials, on-record, more particularly, the
complaint, filed by the private respondent (i.e. the complainant) and the
impugned order, passed by the learned Magistrate. I have also perused
the written arguments, submitted by both the parties.
(30) There is no dispute that the private respondent, being an accused
in the Ajit Singh murder case, was arrested in Jammu (in J & K) and he
was produced before the learned Chief Judicial Magistrate, Guwahati, on
17.06.2013 with a prayer for police custody. Accordingly, vide order
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dated 17.06.2013, the learned Chief Judicial Magistrate allowed 8 (eight)
days police custody with direction to follow the guidelines laid down by
the Supreme Court in the case of D.K. Basu (supra).
On the basis of the allegations, made by Sri Rabinder Pal Singh,
regarding torture in the custody, the learned SDJM (s), by his order,
dated 20.06.2013, directed the I.O. to produce the complainant, in the
Court, on 21.06.2013 with I.O.'s report and Medical Report.
(31) The complainant was examined by Medical Officer on 17.06.2013
i.e. on the date of production before the Court, on 19.06.2013 i.e. during
the custody and on 21.06.20132 i.e. on the date of production before the
Court. Considering the said medical report and allegation of torture and
also noticing black marks on the whole body, swelling over the hands
and wrist and also considering the allegation of assault causing fracture
and pouring of petrol into the anus, the learned SDJM (S), by his order,
dated 21.06.2013, cancelled the police custody and remanded him to
judicial custody with direction to produce the complainant on 24.06.2013
for recording his statement.
(32) Perusing the remanded order, dated 17.06.2013, the order, dated
21.06.2013 aforesaid and the medical reports, dated 17.06.2013,
19.06.2013 and 21.06.20123, it is found that no injury or any mark of
injury etc. was noticed, on the person of the complainant, on the date of
giving the complainant into Police custody. But as per medical report,
dated 19.06.2013, on which date he was produced, from the Police
custody, before the Medical Officer, the Medical Officer advised X-ray of
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right shoulder, both hand and right leg and prescribed as many as six
types of various medicines including antibiotic injection. The medical
report, dated 19.06.2013 reads as follows :
"
0033713
MAHENDRA MOHAN CHOUDHURY HOSPITAL
AN ANNEXE HOSPITAL OF GAUHATI MEDICAL COLLEGE HOSPITAL
Panbazar, Guwahati-781001
OUT PATIENT DEPARTMENT (M.R.D.)
ADVICE SLIP
78232/13 C/O Deptt. Regd. No.
ML-1056/6045/13
Name: GURMIT SINGH Date:19/06/2013
Age: 49 Y Sex M Caste: General
Father/Husband/Guardian's: Hari Singh P.O./T.O.- Bhora
Village/Town: Bhora (Ward No. 1) P.S.- Jammu
Local Address: Basistha P.S. 2302158 District: Jammu
Victim State: Jammu and
Kashmit
Rx,
1. Injection TT. Investigation
1 amp. Stat. (Anti-biotic)
2. Injection Diclophena (Painkiller) X-Ray Right shoulder
3. Tab. Amoxiclav 1625 (Anti-biotic) X-Ray both hand
1 tab twice daily x 5 days
4. Tab Achilofena (Painkiller) X-Ray right leg
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1 tab twice daily x 5 days
5. Tab Trypsian-Chymotrypsin
1 tab twice daily x 5 days
6. Tab Pan-40
1 tab daily at empty stomach
SD/-
Dated: 19.06.2013.
Clinically
:- Right acromion process fracture, physically assault on 19.06.2013.
:- Modified shoulder immobilization is to be applied.
:- Patient will by the splint later (not available now).
:- Patient has refused X-ray.
1. Tab Achilofena Parachutamol.
ASI Paban Barman
2. Tab Pantoprajole Of Basistha P.S.
3. Tab Surnled. Dated. 19.06.2013
:- Keep limps elevated.
:- Required further management.
:- Inform if any swelling, Pain or colour change.
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:- Review in orthopedic for immobilization application and X-Ray
confirmation.
SD/-
Dated: 19.06.2013."
(33) A careful reading of the said medical reports, coupled with the
orders, dated 17.06.2013 and 21.06.2013 and the observations made
therein, by the learned Magistrate, transpire that the complainant, who
did not bear any mark of injury or illness on the 1st day of his production
on 17.06.2013 i.e. prior to taking into custody had sustained various
injuries during the custody period.
(34) The order with the observation, made by the learned Magistrate,
on 21.07.2013, reads as follows:
" Case no 771/12 (Basistha P.S.)
21/06/13
ORDER
Supplementary case record is put up before me today as the original CR is in the Hon'ble Sessions Court. On 20/06/13 a petition was filed by the petitioner alleging custodial torture of the accused Gurmeet Singh by the Police personnel during police custody. Accordingly this Court directed the I/O to produce the accused before this Court along with a medical examination report of the injuries alleged to have been inflicted by the Police.
22The I/O has accordingly produced the accused in the Court today. I have perused the report of the I/O and the medical report submitted by him. The I/O has denied the alleged torture of the accused. The I/O could not produce the x-ray report of the alleged injury in spite of order dtd 20/06/12. From the doctor's prescription it cannot be ascertained the nature and gravity and the age of the injury or the acused person. The I/O's reply regarding the alleged complaint and his medical report is not at all satisfactory. The I/O has failed to comply with the directions made by this Court.
Also heard Ld Counsel appearing for the accused. Perused the petition filed by Smti Inderpal Kaur stating that the accused was brutally tortured by the Police with hockey stick on his body who sustained several injuries.
The accused is seen by this Court who has got black marks over his whole body. I have also seen the swelling over the hands and wrist of the accused. The allegation was that the accused has got fracture on his arm and petrol was put in to his anus. But the I/O has failed to produce the medical report in this regard to the reason best known to him. The accused verbally submitted that his arm is fractured as told by the doctor. He was beaten up with hockey stick and petrol was put into his anus.
In view of the above I find it not justified to remand back the accused in police custody any further as the allegation is made against Police. As the medical examination was done during police custody I find 23 it justified to medically examine the accused with regard to all his injuries mentioned above in judicial custody.
Hence remand the accused to judicial custody till next date. The Superintendent, Central Jail is directed to provide necessary medical treatment to the accused and the Jail authority is further directed to conduct a medical examination over all the injuries referred above along with a x ray of his arm and to submit a detailed report to this Court on the next date positively. N/O will be passed after receiving the medical report from jail authority.
Further I find it just and proper for the ends of justice to record the statement of the accused by a male Judicial Magistrate as the injury occurring to his private parts as alleged and accused can state without any hesitation. Now it is 5:45 pm and all the officers have left. Hence the Jail authority is directed to produce the accused on next opening day i.e. on 24/06/13 before Ld. C.J.M. for N/O regarding the recording of statement of the accused. I/O is to appear on the next date accordingly.
Fix 24/06/13 for production before the Ld. CJM for N/o.
27/06/13 for medical report and I/O's App.
SD/-
Dated: 21/06/2013"
(35) A plain reading of the orders, dated 17.06.2013 and 21.06.2013, coupled with the said medical reports, dated 17.06.2013, 19.06.2013 and 21.06.2013, clearly reveals that the complainant had no sign/mark of any 24 injury on his body prior to taking into custody, but on 21.06.2013, he was found with multiple injuries. The said report and the observations made by the learned Magistrate indicate that there were marks of violence on the person of the complainant. There can be no dispute that he sustained the said injuries during his custody with Police. Certainly, Police took him into custody for the purpose of investigation for obtaining information/ evidence in connection with Ajit Singh murder case, in which case the complainant was also an accused.
He was taken into Police custody on 17.06.2013. He met Mr. Rabinder Pal Singh on 19.06.2013 during the custody period and Mr. Rabinder Pal Singh, coming to know about the torture, filed Petition No. 400/2013, on 20.06.2013, in the Court, alleging, therein, that the petitioner had tortured the complainant. Ms. Inderpal Kaur, wife of the complainant, also filed petition, being Petition No. 413/2013, on 21.06.2013, in the Court.
(36) On production, on 21.06.2013, the learned Magistrate noticed marks of violence on the body of the complainant. On the same day the complainant told the learned Magistrate regarding physical torture and pouring of petrol into his anus. As directed by the learned Magistrate, the statement of the complainant was recorded by a Magistrate, on 24.06.2013. In the said statement, the complainant specifically stated that the petitioner and three other Police personnel had beaten him with hockey stick, that his right shoulder bone was broken, that petrol was thrown into his anus and penis and that he was threatened with dire consequences.
25(37) From the above, it appears that the complainant made the allegations, regarding torture by the petitioner, at the earliest available opportunity i.e. immediately on his production before the learned Magistrate.
(38) The complaint was filed after his release from custody. In the complaint, he reiterated the earlier allegations. It has been specifically alleged that the petitioner had tortured the complainant by beating him with hockey stick and pouring petrol on his private parts, during the said custody period. It has also been alleged that, though he was medically examined during the custody period, the Police officials had managed the medical report, and as such he was required to get himself examined in the G.M.C. H. and G.N.R.C. due to fracture of his right hand. It was also alleged that due to physical torture, he was not in a position to move his right hand and that he was tortured for extorting confession.
(39) In his statement, made under Section 200 Cr.P.C. also, the complainant stated that the petitioner had assaulted and tortured him by beating with hockey stick and pouring petrol on his private part, for which, he sustained injury. He stated that, after his release, he got examined in GMCH, GNRC and Matrix Hospital and that the X-ray report revealed that he had suffered fracture injury in respect of his right hand, shoulder bone. He alleged that he was unable to work with his right hand.
(40) Both, Inderpal Kaur (wife of the informant) and Mr. Rabinder Pal Singh, by making statements, under Sections 202 Cr.P.C., supported the allegations, made by the complainant on material points. The medical 26 reports, dated 19.06.2013 and 21.06.2013, reveal that the complainant sustained injuries during the period of police custody. The medical report, dated 19.06.2013, supports the allegation of fracture injury in respect of acromion process and that modified shoulder immobilization was applied requiring fitting of splint. According to the complainant, he was released on 29.08.2013 and thereafter, he attended GMCH and GNRC, wherein fracture injury on his right hand was detected. In support of the said contention, the complaint has produced the medical examination report, dated 20.09.2013, received from the GNRC, the medical prescriptions dated 12.09.2013 for medicine, issued by the Medical Officer of Al Hayat Medicos, the MRI report dated 25.09.2013, issued from the GMCH. The MRI impression was as follows:
"I m pression:- M R study reveals features of Hill sach's lesion and marrow edema in the humeral head, associated with soft tissue Bankart lesion. There is mild supraspinatus and bicipital tendinosis. Accomioclavicular joint arthrosis noted. There is subcoracoid bursal free fluid. "
(41) Though the said report indicated normal bones, normal spaces, the X-ray of right shoulder joint, revealed ossified body/bony fragrant. The X-ray report dated 20.09.2013, in respect of the right shoulder (AP view) revealed possible dislocation on the acromio clavicular joint. The medical report dated 20.09.2013 and the medical report dated 19.06.2013, issued from the MMC Hospital reveal right acromion process fracture involving shoulder immobilization.
27In view of the above, the petitioner's contention, that the complainant did not sustained any grievous injury or fracture etc., can't be accepted to negate the findings given in the reports, dated 19.06.2013 and 20.09.2013 and the allegation made by the complainant. Of course, as per the X-ray report, dated 26.06.2013, issued from the GMCH, the bone of both knees and right shoulder joint were found intact. The said report appears to be contradictory to the report dated 19.06.2013, issued from the MMCH and the report dated 20.09.2013, issued from the GNRC. The complainant has alleged that the medical reports, obtained during the period of custody, were managed by the Police. As revealed from the GNRC's report, it appears that the complainant, after his release, on bail, got examined and fracture in his right shoulder was found.
The said medical reports, dated 19.06.2013 and 21.06.2013, the medical prescriptions, dated 21.08.2013 and 21.09.2013, disclose that the complainant was required to be on medication after the period of police custody and also after his release from custody i.e. after 90 days. Hence, it appears that he was suffering for the said torture for more than 20 days besides sustaining fracture of bone. This indicates existence of ingredients of Section 320 IPC constituting the offence under Section 325 IPC.
(42) The contention, raised on behalf of the petitioner, that the said injuries were self inflicted injury, caused by rubbing the body against a hard substance, is without any substance. This is a defence plea and the petitioner will have to prove the same by adducing convincing evidence.
28Hence, the allegations brought by the complainant cannot be thrown out holding the injuries were self inflicted injuries.
(43) Cognizance of an offence is to be taken on the basis of the allegations/averments, made in the complaint or the FIR , as the case may be. Existence of a prima-facie case constituting an offence against the accused is sufficient to take cognizance.
(44) The complainant, in his complaint, filed on 08.10.2013 aforesaid, specifically stated that, due to the said assault, caused by the petitioner, he was not in a position to work with his right hand and that he was unable to move his said hand till the date of filing the complaint. The medical reports, dated 19.06.2013 and 20.09.2013, indicated that the complainant suffered fracture injury and he was required to be undergone medical treatment till 12.09.2013. The medical prescriptions, dated 29.08.2013 and 12.09.2013 support the said claim of the complainant. Hence, it appears that, apart from sustaining fracture injury, the petitioner was suffering from bodily injuries/ pains for more than 20 days and he was unable to follow his ordinary pursuits, inasmuch as he could not move his right hand. In view of the above discussion, it is found that the allegations made against the petitioner disclose a prima- facie case under Section325 IPC.
(45) The order, dated 17.06.2013, indicates that on the date of giving into custody, he did not bear those injuries. This is fortified by the orders dated 17.06.2013 and 21.06.2013 and the observations made therein. This indicates that the complainant sustained injuries during the 29 custody period. The complainant specifically alleged that he was inhumanly tortured including beating with hockey stick and also by throwing petrol on the private parts during the police custody in the pretext of interrogation for extorting confession. The said allegations and the above discussed injuries prima-facie disclose the offence under Section 331 IPC.
(46) The learned Sr. Counsel, appearing for the petitioner, has submitted that the petitioner, being a senior Police Officer, was supervising the Ajit Singh murder case and that the complainant was interrogated as a routine duty.
Admittedly, the petitioner had interrogated the complainant during the period of custody. Assault or torture during the interrogation, in respect of a person in custody, can't be linked with official duty. As discussed above, the allegations, made against the petitioner have disclosed a prima facie case under Sections 325 and 331 IPC.
It is submitted on behalf of the petitioner that the allegations of torture are false and concocted and that the same has been brought to frustrate the investigation in the said murder case. Undoubtedly, this is a defence plea, to be proved by the accused at a later stage.
(47) The law regarding exercise of quashing power under Section 482 Cr.P.C. has been clearly laid down by the Supreme Court in a catena of decisions.
30In the case of Harshendra Kumad D. -Vs.- Rebatilata Koley, reported in (2011) 3 SCC 351, the Supreme Court observed:
" It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt- placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have a significant bearing on the matter at prima facie stage."
In the said case, the Supreme Court further observed:-
" As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code".31
(48) In the case of State of Haryana -Vs. Bhajanlal, reported in [1992 Supp (1) SCC 335], the Supreme Court observed as follows and laid down the following guidelines relating to the exercise of the extraordinary power under Article 226 0f the Constitution of India or the inherent Powers under Section 482 Cr.P.C.
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) 32 of the Code except under an order of a Magistrate within at he purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior 33 motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
While laying down the said guidelines, the Supreme Court also cautioned as follows:
" 103. We also give an note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
In the said case, it was submitted that in a given situation, false and vexatious charges of corruption and venality may be maliciously attributed against any person holding an office and enjoying a respectable status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him on account of certain personal rancor, predilections and past prejudices of the complainant.
In this regard, the Supreme Court observed that the answer in such a case, would be that the person who dishonestly makes such allegation is liable to be proceeded against under the relevant provision of the Indian Penal Code--- namely under Section 182 or 211 or 500, besides becoming liable to be sued for damages.
34(49) In the case of Dhanalakshmi -Vs.- R. Prasanna Kumar and Ors., reported in AIR 1990 SCC 494, the Supreme Court observed:
"3. Section 482 of the Cr.P.C empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in convocation or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexatious, in that event there would be no justification for interference by the High Court".
(50) In the case of J.P. Sharma -Vs.- Vinod Kumar Jain, reported in (1986)3 SCC 67, the Supreme Court held that the jurisdiction under Section 482 Cr.P.C. for quashing a criminal proceeding should not be exercised in a case where prima-face case is made out on the basis of the allegations made in the complaint. The Supreme Court further observed-
35"51. The grounds upon which the learned judge seems to have quashed the complaint in the instant case was the subsequent report by the CBI which had not yet been proved and considered in the background of the allegations made and secondly that some of the parties alleged to be in the conspiracy were not made parties. These, in our opinion, are no grounds for quashing the criminal proceedings where on prima facie being satisfied the learned Metropolitan Magistrate had taken cognizance. Taking all the allegations in the complaint to be true, without adding or subtracting anything, at this stage it cannot be said that no prima facie case for trial had been made out. That is the limit of the power to be exercised by the High Court under Section 482 of the Code of Criminal Procedure. The High Court in the instant case has exceeded that jurisdiction".
(51) In the case of Ajay Kumar Das (Supra), the Supreme Court laying down the principle of quashing under Section 482 Cr.P.C. observed that:
" .......power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases for the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report or in the complaint and that the extraordinary or the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."36
(52) In the case of State of Orissa (Supra), the Supreme Court observed that at the stage of consideration of charge, no roving or fishing enquiry is permissible. The Supreme Court, also observed that the High Court, in exercising such jurisdiction under Section 482 Cr.P.C. may consider unimpeachable evidence of sterling quality.
(53) In the case of Krishnan (Supra), the Supreme Court held that a document not specifically ruling out the possibility of the accused's presence in the site of occurrence can't be relied upon in support of the plea of alibi.
(54) In the light of the above decisions and the principles, laid down by the Apex Court, it is settled position of law that the power of quashing a criminal proceeding, arising out of a complaint/ FIR is required to be exercised very sparingly that too, in rarest of rare case, more particularly, in a case where the allegations made in the FIR/complaint, as the case may be, do not disclose a prima-facie case. In the absence of a prima- facie case, the proceeding may be quashed to prevent miscarriage of justice and abuse of process of the Court.
(55) In the case at hand, in view of discussions, made earlier, there is no difficulty in concluding that the allegations made in the complaint disclose a prima-facie case under Sections 325 and 331 IPC. Whether the allegations are true or false is a question to be decided on the basis of the evidence to be collected and produced at a later stage. This Court is not required to make a roving enquiry in respect of the merit of the allegations. The petitioner will have to prove, by adducing evidence, his plea that false and concocted allegations have been brought with a view 37 to frustrate the investigation in the said murder case. This is not the stage to accept the said defence version. The petitioner, in support of his contention, has not been able to produce any such document, which, on the face of it, is beyond doubt or suspicion. None of the guidelines, laid down in the case of Bhajanlal (Supra), is applicable in the present case. In view of the above, I find no sufficient ground for interfering with the said proceeding in exercise of jurisdiction under Section 482 Cr.P.C.
(56) Now the question is whether the criminal proceeding, against the petitioner is bad for want of sanction under Section 197 Cr.P.C. In the case of Sankaran Moitra (Supra), the allegations brought against the Police Officer (appellant), was that the husband of the complainant was beaten death. The appellant took the plea of sanction under Section 197 Cr.P.C. and prayed for quashing the proceeding. The High Court dismissed the quashing petition, observing that it was a case of merciless beating by the Police Officer and causing death of a person and that it could not be said to be an act in the discharge of official duty and held that no sanction under 197 Cr.P.C. was necessary. On appeal, the Supreme Court upheld the High Court's decision.
(57) In the case of Om Prakash (Supra), a complaint was filed against Five Police Officers alleging that they killed his son in a fake encounter. The Police Officers took the plea of want of sanction under Section 197 Cr.P.C. The Supreme Court with the following observation quashed the proceeding for want of sanction.
38"42. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State-sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. The requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible malafide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. The plea regarding sanction can be raised at the inception. "
In the said case, Police, who were performing their duty, were attacked and killed. The fact of the said case is different from the case at 39 hand. Hence, observations made, therein, will not apply to the present case.
(58) In the case of Shree Kantiah Ramayya Munipalli (Supra), the allegations against the appellants government servants was that they being in charge of government stores entered into a conspiracy to defraud the government and arranged to sell the store to the approver (PW-10. Charges under Section 5 (2) of the Prevention of Corruption Act, 1947 and Section 409/34 IPC were framed. Charge under Section 5 (2) P.C. Act , 1947 was subsequently dropped and charge under Section 120 B, 409, 109 were framed. The accused persons were convicted. The Supreme Court observed that the disposal of the goods were in discharge of official act.
The Supreme Court observed:
" Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by and act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did."40
(59) In the case of Amrik Singh (Supra), it was the duty of the appellant, who was the Sub Divisional Officer in the Public Department to disburse the wages of the workmen, employed in the works. It was the practice to pay by taking signature of thumb impression of the employee. The prosecution case was that there was, in fact, no person of the name of Parma, that the thumb impression found in the acquaintance roll was that of the appellant himself. Charge was framed under Section 409 IPC and the appellant was convicted. Plea of sanction under Section 197(i) Cr.P.C. was taken. The conviction was set aside with the following observation:
" Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb-impression in acknowledgement thereof. The accused does claim to have paid the amount to Parma, and the acquaintance roll records the payment, and there is in acknowledgement thereof a thumb- impression as against his name. if what appears on the face of the roll is true and whether it is true or not is not a matter relevant at the stage of sanction then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office."
(60) In the case of Matajog Dobey (Supra), the Income Tax Investigation Commission was required to search two premises to inspect, take copies and secure certain books, papers and documents believed to be in there. A warrant was obtained from the Commission for the said purpose. The authorized officials went to the said premises and 41 on being challenged by the darwan of Kaniram Agarwala, they broke upon the door, went inside and interfered with store boxes and drawer of the books. They tied the darwan Matang Doobey with a rope and assaulted causing injuries. On these facts, three complaints were filed under Sections 323,341,342 and 109 IPC. Referring to the decision held in the case of Shree Kantiah Ramayya Munipalli (Supra), the Supreme Court observed that the assault and use of criminal force etc. alleged against the accused were related to the performance of the official duties.
The Supreme Court also observed:
"There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation."
(61) In the case of State of Orissa through Kumar Raghvendra Singh and Others (Supra), it was alleged that six Forest Officers had falsely implicated the complainant (respondent) for the offences under the Orissa Forest Act, 1972, the Wild Life Act, 1972 and assaulted him thereby committing the offences under Sections 341, 323,25, 506, 386, 42 34 IPC. The trial court and the High Court took the view that no sanction under Section 197 of the Code was necessary.
The matter was taken to the Supreme Court by filing an appeal. In the said case, according to the prosecution, large quantity of ivory was seized from the complainant and he could not justify the possession thereof. It was found that, on 28.02.1991, the accused persons, on being produced before the SDJM, were specifically asked regarding any ill treatment and, on the contrary, he replied that there was no ill treatment. The Court held that the said statement, made by the complainant, before the SDJM struck at the credibility of the complainant. While quashing the said criminal proceeding against the Forest Officers, the Supreme Court observed that the protection under Section 197 Cr.P.C. was available inasmuch as the alleged act done by public servant was reasonably connected with the discharge of his official duty. The Supreme Court further observed that in doing official duty, if the public servant acts in excess of his duty and there is reasonable connection between the act and the official duty, the excess will not be sufficient to deprive the public servant of the protection.
(62) In the case of D.K. Basu (Supra), the Supreme Court observed:
" 28. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third-degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot 43 justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third- degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it.
33. There can be no gainsaying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The Latin maxim salus populi suprem a lex (the safety of the people is the supreme law) and salus republicae suprem a lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair."
Using any form of torture for extracting any kind of information would neither be "right nor just nor fair" and, therefore, would be impermissible, being offensive to Article 21. Such a crime- suspect must be interrogated-indeed subjected to sustained and scientific interrogation-determined in accordance with the provisions of law. He cannot, however, be tortured or subjected 44 to third-degree m ethods or elim inated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to "terrorism". That would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable to punishment but it cannot justify the violation of his human rights except in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge.
41. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331 provide for punishment of those who inflict injury or grievous hurt on a person to extort 45 confession or information in regard to commission of an offence. Illustrations (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. The statutory provisions are, however, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legally injury is a compulsion of judicial conscience."
(63) In the case of Munshi Singh Gautam (Supra), the Supreme Court observed " Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image 46 of any civilized nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crop, the foundations of the criminal justice-delivery system would be shaken and civilization itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually loss faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with."
(64) In view of the above decisions and the observations, made therein, an arrested person i.e. a person in custody can't be subjected to any form of torture causing injury or hurt. The officer doing such act of human right violation is liable for punishment under the penal law.
(65) In the case of D.K. Basu (Supra), the Supreme Court, in clear terms, has held, torture in custody not permissible and lawful. As held by the Supreme Court, for such unlawful activity, the guilty Police Officer is liable to penal action. From the above decisions, it is clear that once a person is arrested and taken into custody, no physical or mental hurt or injury can be intentionally caused to the arrested person. The well being and safety of such persons should be the prime concern of the person in charge of such custody. Therefore, under no circumstances such person 47 can be subjected to torture not to speak of hurling abuses with racial slur and throwing petrol into the private parts. Such acts are certainly inhuman and barbaric, not permitted by civilized society. Though interrogation of an arrested person for the purpose of investigation is permitted by law, physical assault and any other form of torture is not permitted. Law does not permit any person including the supervising Police Officer or the Investigating Officer to assault and torture the arrested person. Such acts can't be accepted as the act done in discharge of official duty by a public servant. Torture in custody can't be linked with official duty.
(66) As discussed above, in the present case, it has been clearly alleged, in the complaint, that the petitioner, besides assaulting the complainant in custody, poured petrol into his private parts. The above discussed medical reports support the said allegations of torture in custody. Hence, the said alleged acts have nothing to do with official duty. Such inhuman act cannot be remotely connected with official duty. Therefore, the protection under Section 197 Cr.P.C. is not applicable in the present case.
(67) From the communication dated 10th June, 2014, issued by the Assistant Registrar (Law), National Human Rights Commission, it appears that the complaint, filed by the wife of the complainant was closed on the ground that the complainant failed to substantiate the allegation by submitting her comments. Hence, the commission concluded that no further investigation was required. It appears that the complaint was not dismissed on merit.
48(68) That apart, in view of the above discussed allegations, made by the victim complainant, in his complaint, filed before the criminal Court seeking criminal trial, the closure of the said complaint by the Human Rights Commission, can't be sufficient ground to quash the criminal proceeding. The filing of the said complaint before the Human Rights Commission by the wife of the victim can't negate the right of the victim to approach a criminal Court of law. Hence, on the face value of allegations, made in the complaint, I find no force in the contention that the present complaint, filed by the complainant, was motivated with malice.
(69) In view of what has been discussed above and findings regarding existence of a prima-facie case under Sections 325 and 331 IPC involving custodial torture, I don't find it to be a fit case for quashing the proceeding in exercise of jurisdiction under Section 482 Cr.P.C. Hence, I find no merit in this petition.
(70) Accordingly, the criminal petition is dismissed. Stay order stands vacated.
(71) Parties shall appear before the trial Court within 30 (thirty) days from this date.
(72) No order as to costs.
JUDGE
Kishor