Bombay High Court
Laxman Bhausaheb Kale And Anr vs Mohini Naraindas Kamwani And Ors on 16 October, 2015
Bench: S.C. Dharmadhikari
WP.427&439.2014.Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 427 OF 2014
WITH
CRIMINAL APPLICATION NO. 50 OF 2015
1. Mr. Purushottam Karad }
presently working as Deputy }
Commissioner of Police, Zone - I, }
Navi Mumbai Police }
Commissionerate having office }
at Sector - 19, APMC Market, }
Vashi, Navi Mumbai. }
ig }
2. Mr. Ahmed Javed }
presently working as Additional }
Director General of Police, Law }
and Order, Maharashtra State, }
having office at Maharashtra }
Police Headquarters }
(Police Mukhayalay), Colaba, }
Mumbai }
}
3. Mr. Ashok Kumar Sharma }
presently working as }
Commissioner of Police, }
Navi Mumbai Commissionerate, }
having office at CBD Belapur, }
Navi Mumbai } Petitioners
versus
1.Smt. Mohini Naraindas Kamwani }
Age - 79 years, R/o. 101, }
Mavali Society, 'A' Wing, Plot }
No. 29C, Sector - 4, Vashi, }
Navi Mumbai - 400 703 }
}
2. Mr. Dilip Naraindas Kamwani }
Age - 58 years, R/o. 101, }
Mavali Society, 'A' Wing, Plot }
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No. 29C, Sector - 4, Vashi, }
Navi Mumbai - 400 703 }
3. State of Maharashtra }
At the instance of Vashi Police }
Station, Navi Mumbai Police }
Commissionerate, Navi Mumbai } Respondents
WITH
WRIT PETITION NO. 439 OF 2014
WITH
CRIMINAL APPLICATION NO. 51 OF 2015
1. Mr. Laxman Bhausaheb Kale }
presently working as Senior Police
ig }
Inspector, Vashi Police Station, }
Navi Mumbai Police }
Commissionerate, having office }
at Sector - 2, Vashi, Navi Mumbai }
}
2. Mr. R. B. Sardesai }
presently working as Senior }
Police Inspector, Special Branch, }
Thane Police Commissionerate, }
Thane } Petitioners
versus
1.Smt. Mohini Naraindas Kamwani }
Age - 79 years, R/o. 101, }
Mavali Society, 'A' Wing, Plot }
No. 29C, Sector - 4, Vashi, }
Navi Mumbai - 400 703 }
}
2. Mr. Dilip Naraindas Kamwani }
Age - 58 years, R/o. 101, }
Mavali Society, 'A' Wing, Plot }
No. 29C, Sector - 4, Vashi, }
Navi Mumbai - 400 703 }
}
3. State of Maharashtra }
At the instance of Vashi Police }
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Station, Navi Mumbai Police }
Commissionerate, Navi Mumbai } Respondents
Mr. Amit Desai-Senior Advocate with Mr. M. V.
Thorat for the Petitioners in WP/427/2014.
Mr. V. M. Thorat with Mr. Pratap Patil for the
Petitioners in WP/439/2014.
Ms. Mohini Naraindas Kamwani Respondent
No. 1 in person.
Mr. Dilip Naraindas Kamwani Respondent No.
2 in person.
Mr. J. P. Yagnik-APP for Respondent No. 3.
CORAM :- S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
Reserved on :- SEPTEMBER 7, 2015
Pronounced on :- OCTOBER 16, 2015
Judgment :- (Per S.C.Dharmadhikari, J.)
These matters were placed before us pursuant to the
directions of the Hon'ble the Chief Justice. Two applications being
Criminal Application Nos. 50 and 51 of 2015 in the aforementioned
Writ Petitions were moved by the Respondents to the Writ
Petitions/original complainants. The request in these applications was
to vacate the interim orders in the Writ Petitions.
2) When these two applications were placed before us, we
indicated to the parties and Counsel that it would be a repetition and
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duplicity as common arguments would be canvassed in these
applications and thereafter in the Petitions. It would be therefore fair,
just and in the interest of justice that we take up the Writ Petitions
themselves for hearing and final disposal.
3) Accordingly, all parties and Counsel have agreed and we
have, by this judgment, disposed of the Petitions themselves. Once the
Petitions themselves are disposed of and in the view that we have taken,
the criminal applications would not survive.
4) The facts and circumstances in which the Writ Petitions
have been filed in this Court need to be briefly stated. Writ Petition
No.427 of 2014 is by three Petitioners, namely, Purushottam Karad,
Ahmed Javed and Ashok Kumar Sharma. These Petitioners have
impleaded the original complainants as Respondent Nos. 1 and 2
together with the State as Respondent No. 3. This Petition invokes this
Court's power under Articles 226 and 227 of the Constitution of India
read with section 482 of the Code of Criminal Procedure, 1973 and
seeks to challenge the legality and validity of an order dated 1 st
February, 2014 passed by the Judicial Magistrate First Class, Vashi at
Belapur, Navi Mumbai in Miscellaneous Application No. 91 of 2014.
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5) By this order, the learned Judicial Magistrate had directed
the concerned police station to investigate the crime as against Laxman
Kale - Senior Police Inspector, Vashi Police Station, Vashi, Navi Mumbai,
Raosaheb Sardesai, Senior Police Inspector, Vashi Police Station, Vashi,
Navi Mumbai and the aforementioned Petitioners Purushottam Karad
and Ahmed Javed. The parties would be referred to as accused and
complainants.
6) We do not see why Mr. Ashok Kumar Sharma,
Commissioner of Police, Navi Mumbai, CBD Belapur has filed the
Petition for, the direction to investigate the crime by the concerned
police station is not qua him. The two complainants appearing in
person agreed before us that the learned Judicial Magistrate First Class
has not directed investigation by the police and under section 156(3) of
the Code of Criminal Procedure, 1973 qua Mr. Ashok Kumar Sharma.
Therefore, he was not required to file any Petition. Pertinently the
complainants have themselves stated before us that they have no
grievance as against Mr. Sharma.
7) In the two Writ Petitions, we are concerned with original
accused Nos. 1 to 4. Writ Petition 427 of 2014 is by original accused
Nos. 3 and 4 and the other Writ Petition, namely Writ Petition No. 439
of 2014 is by original accused Nos. 1 and 2.
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8) The facts leading to the filing of the Petitions are that a
private complaint is filed in the Court of the learned Judicial Magistrate
First Class, Vashi, CBD Belapur, being Regular Criminal Case and Other
Miscellaneous Application No. 91 of 2014. The complainants' case is
that complainant No. 1 resides with her unmarried son, namely, Dilip
Kamwani, aged 58, complainant No. 2 therein and a mentally
challenged daughter, namely, Kanta. Second daughter of complainant
No. 1, namely, Smt. Sumita Karani resides in Vashi along with her
husband. Sumita Karani has three sons, one residing at Andheri, one at
Dubai and one at USA. (Sumita Karani has sold her Vashi flat in March
and her son has also sold his Andheri flat. The complainants do not
know where they stay in Mumbai presently).
9) Around August, 2010, Manoj Karani, grandson of
complainant No. 1 and son of Sumita Karani, residing in Dubai,
approached complainant No. 1 with the intention of forcefully obtaining
her signatures on some documents and obtaining her bank details. It is
relevant to state here that complainant No. 1 had allegedly severed her
relations with her daughter Sumita Karani and her grandson in 2007
itself. That due to the protests of the complainants, the said Manoj
Karani left the premises, but continued to intimidate and threaten the
complainants through various means. It is pertinent to state here that
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complainant No. 1 had approached accused No. 2, on 24 th December,
2010 to register a case of criminal intimidation against her grandson
but only a non-congnizable case was registered and no further action
was taken. Even thereafter Manoj Karani visited the complainant's
house on several occasions threatening her and her son with dire
consequences stating that he had links with the underworld and a
certain Hiten Sampat with criminal antecedents.
10) That only after complainant No. 1 constantly followed up
with accused No. 2 that complainant No. 1 was informed that the case
was held to be of a civil nature and therefore not within the jurisdiction
of the police department and hence closed. This, despite the fact that
the complainants repeatedly informed the police officers that their life
was in danger due to the continuous threats from the grandson of
complainant No. 1 (Manoj Karani)
11) That on 11th November, 2011, complainant No. 1 addressed
a letter to the Chief Minister explaining her grievance and the
harassment faced by her.
12) As a consequence of the said letter, complainant No. 1 was
approached by the officers of accused No. 1 on 27 th December, 2011,
wherein they promised complainant No. 1 that appropriate action
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would be taken and asked her to give a written undertaking stating that
she would not sit on any protest fast. That a copy of the letter dated
27th December, 2011 sent by complainant No. 1 to accused No. 1 is at
Annexure 'B'.
13) That in view of the fact that no action was taken by the
officers working under accused No. 1, on the complaint of complainant
No. 1 and the officers of accused No. 1 making false statements before
the Maharashtra State Human Rights Commission resulting in the
closure of the complainants' complaint, the complainants addressed a
letter to the Senior Police Inspector of Azad Maidan Police Station and
thereby sought permission to sit on "Peaceful Protest Hunger Strike" on
16th January, 2012 against the inaction of the police.
14) The complainant No. 1 started her fast (Hunger Strike)
from 16th January, 2012 at Azad Maidan and was stationed there for
three days. The complainant No. 1 addressed a letter to various
authorities informing them that she intends to continue her hunger fast
for an indefinite time, till justice is done. A copy of the letter dated 21 st
January, 2012 sent by Bombay High Court Public Grievances Cell to
accused No. 4 is at Annexure 'D'.
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15) As a consequence of the above said representation, a high
ranking officer of the Azad Maidan Police Station visited complainant
No. 1 and convinced her that action will be taken on her grievances and
she should not take any steps that could be considered contrary to the
law of the land. Therefore, complainant No. 1 decided to call off her
fast and gave the same in writing to the police officer. Copy of the
undertaking dated 24th January, 2012 of complainant No. 1, wherein
she had very clearly stated that in her life of 77 years she did not breach
any law and she did not intend to do so at this stage of her life, is
annexed at Annexure 'E'.
16) That the complainants were extremely surprised to see two
police officers, one of them addressed as Kadam, accompanied by one
lady police officer, addressed as Ms. Chikne, at their doorstep at 8.30
a.m. on the morning of 25th January, 2012. Complainant No. 1 and her
son were informed that the police officials had come to their residence
to register an FIR on her complaint and that she along with her son
would have to accompany them to the police station. Since it was early
morning, the complainants asked them to proceed ahead and that they
would be at the police station in half an hour. Complainant No. 1 and
her son were told that they will be required only for about an hour,
therefore, the complainant No. 1 and her son left her mentally
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challenged daughter behind and arrived at the Vashi Police Station at
around 9.00 a.m. on 25th January, 2012.
17) That on 25th January, 2012, till 1.30 p.m., the complainants
were made to sit inside the police station without any information or
explanation and without any food or water. At about 2.30 p.m., the
complainants were escorted to the Court premises by few police officers
along with lady police officers and were made to sit on a bench outside
the Court room of learned Judicial Magistrate, First Class. At around
4.45 p.m., the complainants were produced before the Magistrate and it
was only at this stage that the complainants realised that they were
being touted as accused persons and not as complainants. After
completing the formalities, the complainants were sent to judicial
custody for three days. This in spite of the fact that complainant No. 1
had given a clear undertaking that she had called off her protest fast.
18) Complainant No. 2 requested the officers of accused No. 1
that he be produced before the learned Magistrate once again so that
the Magistrate could be apprised of the facts. Instead, complainant No.
2 was handcuffed by Mr. Kadam, and pushed into the police van along
with complainant No. 1. Complainant No. 1 requested the police
officers to at least allow her to take an extra set of clean clothes, articles
of necessity and ensure that her mentally challenged daughter, who was
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alone at home, is looked after by the neighbours, but this request was
also turned down by the police officers.
19) That on 27th January, 2012, the complainants were
produced before learned Magistrate, where police officers sought
extension of the detention period, which was opposed by the
complainants. On hearing the submissions made by the complainants,
the learned Judicial Magistrate, First Class ordered release of the
complainants.
20) Following the order of learned Judicial Magistrate, First
Class, the complainants were taken back to Kalyan Prison for
conducting release procedure. On the way to Kalyan Prison,
complainant No. 2 was again handcuffed despite his protest and
objection.
21) That after their release, complainant No. 2 made a
complaint to the Commissioner of Police narrating the above illegal
incident of being handcuffed by the accused.
22) Aggrieved by the illegal action of the accused, complainant
No. 1 approached the Bombay High Court filing Criminal Writ Petition
No. 1857 of 2012 seeking justice from the High Court against the illegal
action and gross violation of fundamental rights of the complainants.
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23) The accused filed an affidavit of Senior Police Inspector on
3rd August, 2012 denying the allegation of illegal arrest or detention of
the complainants. Further it also denied the ill-treatment and
handcuffing of the complainants.
24) The High Court heard the Petition on 20 th November, 2012
and found that prima facie case is made out by the complainants that
the directions of the Hon'ble Supreme Court in case of D. K. Basu vs.
State of West Bengal reported in (1997) 1 SCC 416 have not been
complied with. The Court directed the concerned officers to remain
present on 23rd November, 2012.
25) Further, on 23rd November, 2012, the High Court perused
the documents filed by the Assistant Public Prosecutor and came to the
conclusion that Station Diary Entry No. 26 does not make any reference
to the complainants and that the complainants had declined to sign the
arrest form. Further, the affidavit of the then Senior Police Inspector
Raosaheb Sardesai dated 3rd August, 2012 does not make any reference
to the arrest form being drawn. The Court, in its order, further found
that there is no record to show that the constable was deputed to
inform the mentally challenged daughter of complainant No. 1.
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26) On 22nd February, 2013, the accused filed an additional
affidavit in Criminal Writ Petition No. 1857 of 2012 denying the
handcuffing of the complainants or any illegal acts committed against
the complainants.
27) The complainant No. 1 filed a rejoinder to the additional
reply affidavit by the accused on 22 nd February, 2013 bringing on record
the illegal arrest and violation of fundamental rights of the
complainants which were contrary to the law laid down in the D. K.
Basu's case (supra).
28) On 28th March, 2013 and 30th March, 2013, complainants
sought amendment in the Writ Petition with regard to the prayers
seeking mandamus against the co-accused No. 1 Senior Police Inspector
Laxman Kale, Senior Police Inspector Raosaheb Sardesai. (These are
two co-accused of No. 1 Senior Police Inspector, Vashi, in Writ Petition
No. 1857, because first rejoinder was filed by Senior Police Inspector
Raosaheb Sardesai on 3rd August, 2012 and second rejoinder was filed
by Senior Police Inspector Laxman Kale on 22 nd February, 2013). A
mandamus was also sought against accused No. 2 DCP of Vashi Zone -
I, Navi Mumbai Purushottam Karad and Accused No. 3 earlier Police
Commissioner, Navi Mumbai, Javed Ahmad. The mandamus sought
was that the accused be immediately suspended and prosecuted for
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illegally detaining and arresting the complainants and for perjury by
seeking detention order and judicial custody from Judicial Magistrate
First Class, Vashi Court. They also sought that accused No. 1 to 3
should be suspended and prosecuted for planned conspiracy and
deliberate dereliction of duty (as Bombay High Court Public Grievances
Cell had sent a letter on 21st January, 2012 to accused No. 3 earlier Navi
Mumbai Police Commissioner Javed Ahmad and accused No. 2 DCP
Vashi Zone - I Purushotam Karad had submitted a false reply to that
through additional affidavit of accused Senior Police Inspector Laxman
Kale dated 22nd February, 2013 by way of exhibit 'A' therein).
29) After hearing the parties, the Hon'ble High Court, vide its
final judgment and order dated 13 th June, 2013 partly allowed Criminal
Writ Petition No.1857 of 2012 granting compensation of Rs.3 lacs each
to the complainants for their illegal arrest and detention.
30) It is the case of the complainants that this Court in its final
judgment dated 13th June, 2013, delivered in Criminal Writ Petition
No.1857 of 2012, was pleased to direct that the police officers of Vashi
Police Station should examine the complaint by the original Petitioner
No. 2 (Respondent No. 2 in present Petitions) and the necessary
documents in support of the grievous injury and if the complaint and
the documents disclose a cognizable offence, action in accordance with
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law be initiated. However, this Court dismissed the Writ Petition to the
extent it relates to a Writ of Mandamus directing the police to register
an offence on the basis of the complaint of the first Petitioner. The
Petitioners were relegated to avail of alternate remedies in accordance
with law.
31) It is in these circumstances that the complainants filed the
complaint in the Court of Judicial Magistrate, First Class and the
prayers thereof are as under:-
"a)
My this Hon'ble Court be pleased to direct the concerned
Vashi Police Station to register FIR U/s (IPC) Sections 466, 469,
471, 474, 167, 196, 220, 191, 192, 193, 195, 201, 120(B), 199,
200 and 145 (2) Bombay Police Act.
b) Concerned police station be directed to give the report to
this Hon'ble court within a period of 1 month from the date of
the order of this Hon'ble Court.
....."
32) We are not concerned with other prayers in the application.
33) It is on this complaint that the learned Judicial Magistrate,
First Class passed the impugned order. It would be convenient to
reproduce the same in its entirety. It reads as under:-
"Order below Ex. No. 1 in Other Misc. Appln. No. - 91/2014
1] Perused the complaint. Heard the petitioner no. 2 Dilip
Kamwani. Perused the documents. As per the Petitioner no. 2
his mother i.e. petitioner no. 1 Mohini Kamwani was arrested as
well as he was arrested on 25-01-2012 and he has alleged that
accused no. 1 to 4 are responsible for their arrest, and that their
arrest and detention in the jail after arrest for 3 days was not
justified and the accused no. 1 and 4 are prima facie responsible
for their arrest and detention. They relied on the Judgment and
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Order passed by the Hon'ble High Court of Judicature in Writ
Petition (Criminal) No. - 1857/2012 filed by the petitioner no. 1
and 2. The petitioners alleged that they were directed to
proceed to file the private complaint or an application under
Section 156(3) of Code of Criminal Procedure by the Hon'ble
High Court in writ petition no. - 1857/2012. I agree with the
arguments advanced by the petitioner no. 2 as to satisfying to
proceed as per Section 156(3) of the Code of Criminal
Procedure to investigate the crime as against accused no. 1 to 4
for the offence alleged under Section 211, 466, 469, 471, 474,
167, 196, 220, 191, 192, 193, 195, 201, 120(B), 199, 200 of the
Indian Penal Code and 145(2) of the Bombay Police Act.
2] Prima facie accused no. 1 to 3 are the police officers and
accused no. 4 is the then Commissioner of Police Navi Mumbai
and presently Additional DGP Law and Order Maharashtra. As
per my view, whether these police officers will be immune from
prosecution is a matter of trial and passing order under section
156(3) under Code of Criminal Procedure is a part of
investigation and not any cognizance of an offence taken by this
Court. The concern Investigating Officer to whom the matter
will be prefer for investigation is at liberty to get sanction as
provided under the Law. Hence, the order -
ORDER
1] The concern police are directed to investigate the crime
as against accused no. 1 to 4 under Section 211, 466, 469, 471,
474, 167, 196, 220, 191, 192, 193, 195, 201, 120(B), 199, 200
of the Indian Penal Code and 145(2) of the Bombay Police Act,
as per Section 156(3) of the Code of Criminal Procedure.
Vashi,
Dt. 01-02-2014
(Yamini Boravke)
Jt. C.J.J.D. & J.M.F.C. Vashi.
At-Belapur, Navi Mumbai"
34) Mr. Amit Desai-Senior Advocate appearing for the
Petitioners in Writ Petition No. 427 of 2014 submitted that the
impugned order is contrary to law. It is clearly contrary to the
principles to be applied while directing the police to carry out
investigations. Mr. Desai would submit that there are no allegations
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made against the present Petitioners in respect of the arrest of
Respondent Nos. 1 and 2 nor allegations are made connecting the
present Petitioners in respect of the arrest panchanama. There is
complete non application of mind on the part of the learned Judicial
Magistrate, First Class, inasmuch as offences punishable under sections
167, 191, 192, 193 and 195 of the Indian Penal Code cannot be alleged
at the instance of a private party. It is the magistrate or under his
direction, his subordinate officer, who can file a complaint in respect of
these offences and a private complaint therefore was not entertainable.
35) Mr. Desai submits that the learned Judge ought to have
been aware that even a direction under section 156(3) of the Code of
Criminal Procedure, 1973 can be issued only after the Judge is of the
prima facie opinion that the material produced discloses commission of
an offence. A direction of the nature issued casts a stigma on parties
like the Petitioners. Therefore, the learned Judge should apply his mind
and record a reasoned satisfaction. He cannot pass an order
mechanically or for the asking. Mr. Desai submits that the reasons may
be brief but they must disclose application of mind to the necessary and
relevant factors. In the present case, the learned Judge was passing an
order on a private complaint of the complainants. The learned Judge
should have read the complaint as a whole and to find out whether
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there is any material to issue the direction qua these accused, namely,
accused Nos. 3 and 4. Mr. Desai was at pains to point out that the only
averment at para 16 of the complaint is not enough to proceed and
issue the direction to investigate under section 156(3) of the Code of
Criminal Procedure, 1973. Thus, no prima facie finding against accused
Nos. 3 and 4 has been rendered and violation allegedly of the guidelines
in the decision of the Hon'ble Supreme Court of India in the case of
D.K. Basu (supra) would not enable the learned Judge to issue the
direction as complained. The learned Judge should have appreciated
that the alleged act and committed by other accused was completed
before the complainants made a written complaint to the Commissioner
of Police. There is nothing to show even prima facie that the Petitioners
had a role in the episode of arrest or any overt act has been attributed
to them. There is no allegation of any conspiracy either. In these
circumstances, the learned Judge should not have proceeded to issue
the subject direction as against the Petitioners/original accused Nos. 3
and 4. This would dissuade high ranking officers from performing their
duties in law.
36) Mr. Desai then submits that the learned Judge should have
been aware of the requirement of prior sanction so as to proceed
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against the public servants/public officials. It is a pre-condition and no
reasons have been assigned as to why the sanction is not required or if
required that aspect need not be gone into at this stage. Mr. Desai has
submitted that the finding in para 2 that whether these police officers
are immune from prosecution is a matter of trial is illegal, erroneous
and untenable. The further view that at this prima facie stage the
learned Judge is only exercising powers under section 156(3) of the
Code of Criminal Procedure, 1973 as a part of the investigation and the
Court is not taking any cognizance of the offence is ex-facie
unsustainable in law. The learned Judge has completely lost sight of the
absence of any allegations or averments against the Petitioners.
Mr.Desai would submit that if the complaint projects that the
complainants were arrested illegally, then, the learned Judge should
have been aware of the fact that the Petitioners are not concerned with
nor have effected the arrest. Petitioner No. 1 is the Deputy
Commissioner of Police and Petitioner No.2 is the Commissioner of
Police, Navi Mumbai. As far as the Petitioner No. 3 is concerned, it is
conceded that there is no material and therefore no direction is issued
qua him. Mr.Desai has invited our attention to page 27 of the paper
book to urge that the complainants are bold enough to seek suspension
and immediate detention so also arrest of these Petitioners for planned
conspiracy and deliberate dereliction of duty. Mr. Desai submits that, as
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far as conspiracy is concerned, there is no prima facie material nor are
the averments in the complaint enough to infer even prima facie any
conspiracy, in which these high ranking police officials are involved. If
the allegations are of dereliction of duty and which are based on a
complaint made to this Court's Public Grievances Cell, then, for that, at
best a departmental action or proceedings can be initiated against the
Petitioners, but surely no offence and punishable in law has been
committed. Mr. Desai then highlights the prayers in the complaint and
at pages 29 and 30 of the paper book. Mr. Desai would submit that
there are no prima facie materials which would indicate that offences
punishable under sections 466, 469, 471, 474 of the Indian Penal Code
are committed much less offences punishable under sections 201, 120B
of the said Code. For all these reasons, Mr. Desai would submit that the
Writ Petition be allowed.
37) Heavy reliance is placed by Mr. Desai on the Hon'ble
Supreme Court Judgment in the case of Anil Kumar and Ors. vs. M. K.
Aiyappa and Anr. (Criminal Appeal Nos. 1590-1591 of 2013, dated 1st
October, 2013) and on the following decisions:-
(i) Mr. Pandharinath Narayan Patil and Ors. vs. The State
of Maharashtra (Criminal Appeal No. 4775 of 2014 dated
30th March, 2015)
(ii) Mrs. Priyanka Srivastava and Anr. vs. State of U. P. and
Ors. (Criminal Appeal No. 781 of 2012 dated 19th March,
2015)
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38) Mr. Desai's arguments have been adopted by Mr. Thorat,
the learned Advocate appearing for the Petitioners in Writ Petition
No.439 of 2014. In addition, he relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Maksud Saiyed vs. State of
Gujarat and Ors. reported in (2008) 5 SCC 668. He also relies upon an
order of a Division Bench of this Court dated 5th December, 2014 passed
in Writ Petition No. 4188 of 2014.
39) On the other hand, complainant No. 2 Mr. Kamwani
appearing for himself and his mother, the other complainant, argued
extensively and also filed written submissions.
40) Before his oral arguments and remaining if any after
extensively quoting from the written submissions are considered, we
deem it appropriate to firstly make reference to the notes of arguments.
The written notes of arguments read as under:-
40.1) Respondents in-person No. 1 and 2 Mohini Kamwani and
Dilip Kamwani humbly request the Hon'ble Court to please take the
following on record as our Written Notes of Argument in the above
mentioned Petitions as well as in our Applications No. APPW 50
and 51 of 2015 in the above Petitions as they are connected
matters:
J.V.Salunke,PA
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40.2) Petitioners' false Criminal Writ Petition Nos. 427 and 439 of
2014 to obtain ex-parte stay orders are not maintainable, as, as per
the law they have to file a Revision in Sessions Court and Criminal
Writ Petition for quashing under section 482 is not maintainable.
We have already submitted to the Hon'ble Court the case law on
this with final judgment of Bombay High Court (Nagpur Bench)
being Criminal Writ Petition No. 460 of 2008 in the case of
Narayandas s/o Hiralalji Sarda vs. State of Maharashtra and Anr.
reported in 2009(2) Mh. L. J. 426 and another Bench of Bombay
High Court has also held the same view in the case of B. S. Khatri
vs. State of Maharashtra reported in 2004(1) Mh. L. J. 474.
40.3) I am raising the basic point of jurisdiction, jurisprudence,
natural justice and legal validity of any equivalent Bench of this
Hon'ble Court (Coram: JJ - Hon'ble Naresh Patil and V. L. Achaliya)
entertaining the above two Criminal Writ Petitions for quashing of
the FIR and granting the said ex-parte stay orders to Petitioner
Police Officers against the directions issued to me by the earlier
equivalent Bench (Coram: JJ - Hon'ble P. V. Hardas and M.
Bhatkar) to avail alternate remedy of filing a private complaint
under section 156(3) against four guilty police officers after fining
them Rs.6 lac after admitting their illegalities, false case, forgery,
perjury, etc.
J.V.Salunke,PA
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40.4) That too after the four guilty police officers filed their
Special Leave Petition in the Hon'ble Supreme Court which was
dismissed by the Hon'ble Supreme Court - which means the SC
has upheld the filing of private complaint against them under
section 156(3) by us.
40.5) This shockingly means that, one Bench of this Court, which
did not grant me the direct remedy but directed me to register FIR
against the police under section 156(3) through alternate remedy,
but the other Bench of the same High Court gives them an ex-parte
stay order to them when I have obtained the FIR order under
section 156(3) - thereby snatching my alternate remedy also and
making me remedyless - that too after SC has upheld the filing of
private complaint against them under section 156(3) by us.
40.6) Gross contempt of Hon'ble Supreme Court:
(I) Granting of the said ex-parte stay orders dated 6 th
February, 2014 in Criminal Writ Petition Nos. 427 and 439 of 2014
to the Petitioner police officers and non-registration of FIR resulting
from non-vacating of the same itself amounts to gross contempt of
the Hon'ble Supreme Court.
(II) It is clear that this Court, after finding the four
Petitioner police officers guilty and fining them to pay us the
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monetary compensation of Rs.3 lac each, gave us clear directions in
the final judgment dated 13th June, 2013 in our Criminal Writ
Petition No. 1857 of 2012 to prosecute the Petitioner police officers
through a private complaint under section 156(3) of the Code of
Criminal Procedure, 1973 and after that the Petitioners filed their
SLP No. 6534 of 2013 on 23rd September, 2013 in the Hon'ble
Supreme Court to challenge the said final judgment of this Court
and the Hon'ble Supreme Court has dismissed their said SLP - not
giving them any reliefs including on their prosecution through
private complaint by us under section 156(3) of the Code of
Criminal Procedure, 1973, thereby upholding the filing of private
complaint by us against police under section 156(3) of the Code of
Criminal Procedure, 1973.
(III) If the Hon'ble Supreme Court did not want the four
Petitioner police officers to be prosecuted, when police filed their
SLP in the Hon'ble Supreme Court, then, the Hon'ble Supreme
Court would have granted the relief to police, including no
prosecution of police even through private complaint by us under
section 156(3) of the Code of Criminal Procedure, 1973, as
directed by the Hon'ble Bombay High Court in the said order dated
13th June, 2013 in our Criminal Writ Petition No. 1857 of 2012
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which police challenged in their SLP in the Hon'ble Supreme Court
and the Hon'ble Supreme Court has dismissed their SLP.
(IV) If the Hon'ble Supreme Court did not want the four
Petitioner police officers to be prosecuted, as per our SLP No.
25082 of 2013, then, the Hon'ble Supreme Court would not have
granted us the liberty to approach the Bombay High Court.
(V)
Moreover, the Bombay High Court in its final
judgment has not maintained requirement of prior sanction for
prosecution of guilty police officers under section 156(3) of the
Code of Criminal Procedure by us because the High Court has
admitted the false case of police (that we were going to commit
suicide) and also forgery done by police in station diary and a
criminal conspiracy under section 120B, which require no sanction
to prosecute such police officers filing false cases and doing forgery
and a criminal conspiracy under section 120B, as these are not part
of their official duties and the Hon'ble Supreme Court has also
upheld the same by dismissing the SLP of police and not asking for
sanction to prosecute them.
J.V.Salunke,PA
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40.7) Material hiding of the facts by Petitioner police officers that
Hon'ble Supreme Court has dismissed their SLP challenging
Bombay High Court final judgment:
Moreover, we have also submitted to this Court a copy of
the order passed by the Hon'ble Supreme Court in our SLP
No.25082 of 2013 on 13th December, 2013 where the Hon'ble
Supreme Court has directed us to approach this Hon'ble Court,
whereas the Hon'ble Supreme Court has dismissed the SLP
No.6534 of 2013 on 23rd September, 2013.
That the Petitioner police officers have deliberately hidden
and suppressed these crucial Hon'ble Supreme Court orders from
this Hon'ble Court to get a favourable order by playing a fraud on
this Court. Hence, their Petitions are liable to be dismissed in
limine with heavy costs and appropriate action against the
Petitioners for contempt of Hon'ble Supreme Court and High Court
and the said ex-parte orders are liable to be vacated.
40.8) 2014 Hon'ble Supreme Court Judgment - No sanction
required to prosecute police officers who file false cases/charge-
sheet:
In the matter of Perumal V. Janaki (2014) 5 SCC 377, the
Hon'ble Supreme Court (CJI P. Sathasivam and Chelameswar) has
J.V.Salunke,PA
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laid down a clear law to prosecute police officers who file false
charge-sheet/case.
40.9) Hon'ble Supreme Court judgment - No sanction required in
cases of misuse and abuse of power by police:
In the case of Choudhury Parveen Sultana vs. State of West
Bengal and Anr. reported in 2009 (1) SCR 99, Hon'ble Supreme
Court Justice Altamas Kabir and Justice Markandey Katju holds
that no sanction is required to prosecute public servants (Deputy
Superintendent of Police in this case), as all their acts in the
purported discharge of the official duties cannot be brought under
the protective umbrella of section 197 of the Code of Criminal
Procedure, 1973. On the other hand, there can be cases of misuse
and abuse of power vested in a public servant which can never be a
part of their official duties.
Annexed and marked as Exhibit 'C' is the copy of the above
Supreme Court judgment.
40.10) No sanction required as per clear law laid down by the
Hon'ble Supreme Court in para 36 of the judgment in the case of
D.K. Basu vs. State of West Bengal reported in (1997) 1 SCC 416.
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40.11) In the case of Arnesh Kumar vs. State of Bihar reported in
(2014) 8 SCC 273, again the Apex Court has laid down clear
directions on actions to be taken against police officers and
Magistrates arresting and jailing the accused illegally and
unnecessarily:
Criminal Law Criminal Procedure Code, 1973
Ss. 41, 41-A and 57 - Power of police to arrest without
warrant - Proper exercise of - balance between individual liberty
and societal order while exercising power of arrest - directions
issued - directions issued herein, held, shall apply to all such cases
where offence is punishable with imprisonment for a term which
may be less than seven years or which may extend to seven years
whether with or without fine - police officers shall not arrest the
accused unnecessarily and Magistrate shall not authorise detention
casually and mechanically - failure to comply with these directions,
shall, apart from rendering police officers concerned liable for
departmental action, also make them liable to be punished for
contempt of court - authorising detention without recording
reasons by Judicial Magistrate concerned shall be liable for
departmental action by appropriate High Court - Copy of judgment
to be forwarded to Chief Secretaries as also Director Generals of
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Police of all States and UT and Registrar General of High Courts for
ensuring compliance therewith, (2014) 8 SCC 273-A.
Criminal Law-Police Colonial attitude of police persistence
of, even after 60 years of independence deprecated, (2014) 8 SCC
273-C.
40.12) Catena of the Hon'ble Supreme Court and Hon'ble High
Court judgments - no sanction is required if police officers file false
cases, do forgery, perjury, criminal conspiracy to commit criminal
offences to jail any person.
41) We have quoted verbatim from their notes of arguments
tendered on different occasions only because they should not have any
grievance. The vehemence with which the complainants argued
demonstrated that they were deeply hurt, disturbed and therefore
agitated by the wrongful and illegal arrest. Besides the above, it is
orally urged that the case law cited by the Petitioners is distinguishable
on facts. It is evident, according to the complainants, that for
prosecution of offences under the Indian Penal Code, a sanction under
section 19 of the Prevention of Corruption Act, 1988 is not necessary.
Similarly, the requirement of section 197 of the Code of Criminal
Procedure, 1973, in this case, would not apply, as the acts committed
are not in the course of performance and discharge of official duty. It is
urged that none of the police officers can forge or tamper the official
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records. Such tampering or forging is a offence and punishable act and
merely because they are high ranking police officers does not mean that
they are empowered to commit offences. They are only protected if
they act honestly and bonafide. It is found that they have not acted as
such and that is why their conduct is strongly commented upon by this
Court. In the circumstances, the contentions of the Petitioners are
entirely untenable and should not be accepted. The proceedings in the
present case are pursuant to liberty granted by this Court. Secondly, it
is apparent that the learned Judge was not required to give a detailed
judgment nor comment upon the merits of the case at this prima facie
stage. The learned Judge was obliged to record only a prima facie view
and on why she deems it necessary to cause a investigation to be made
into the allegations in the complaint of the present complainants. That
she has sufficiently indicated and whether there were adequate
materials or otherwise cannot be determined by this Court at this prima
facie stage. In other words, in writ jurisdiction, the adequacy of the
reasons assigned in the impugned order cannot be gone into. This
Court is not a Court of Appeal. It is only scrutinising the impugned
order for its legality and validity. In the circumstances, and when the
order is not erroneous and illegal nor is it perverse, then, the same
deserves to be upheld. It must be upheld in its entirety. The Petitions
be dismissed.
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42) Reliance is placed upon the following decisions of the
Hon'ble Supreme Court and several High Courts:-
(i) District Development Officer vs. Maniben Virabhai AIR
2000 Guj. 255.
(ii) Narayandas s/o. Hiralalji Sarda vs. State of
Maharashtra and Anr. 2009(2) Mh. L. J. 426.
(iii) B. S. Khatri vs. Stateof Maharashtra 2004(1) Mh. L.
J. 474.
(iv) Hari Singh Etc. vs. State of Haryana 1993 SCC (3)
114.
(v) Sundarjas Kanaylal Bhathija and Ors. vs. The Collector,
Thane, Maharashtra AIR 1990 SC 261.
(vi) Mahadeolal Kanodia vs. The Administrator General of
West Bengal AIR 1960 SC 936.
(vii) Perumal vs. Janaki (2014) 5 SCC 377.
(viii) Choudhury Parveen Sultana vs. State of West Bengal
and Anr. 2009 (1) SCR 99.
(ix) D. K. Basu vs. State of West Bengal (1997) 1 SCC 416.
(x) Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273.
(xi) Niraj Ramesh Jariwala vs. Mahadev Pandurang Nikam
Criminal Writ Petition No. 856 of 2012.
(xii) Afzal vs. State of haryana AIR 1996 SC 2326.
(xiii) Secretary Hailakandi Bar Association vs. State of
Assam 1996 SCC 9 74.
(xiv) G.L. Gupta, Advocate vs. R. K. Sharma 2000 AIR SC 0-
3632.
J.V.Salunke,PA
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(xv) Mohd. Zahid vs. Govt. of NCT of Delhi 1998 Cri. L. J.
2908.
(xvi) Salma Babu Shaikh vs. State of Maharashtra Mh. L. J.
3 182.
(xvii) Nandkumar S. Kale vs. Bhaurao Chandrabhanji Tidke
2007 All MR (Cri.) 2737.
(xviii) Kodali Puranchandra Rao vs. Public Prosecutor
Andhra Pradesh 1975-SCC-2-570.
(xix) Raman Lal vs. State of Rajasthan and Ors. 2001 Cri.
L.J. 800.
(xx) Prabatabai Sakharam Taram vs. State of Maharashtra
2006 Cri. L. J. 0-2202.
(xxi) Kapol Co-op. Bank Ltd. vs. State of Maharashtra 2005
Cri. L. J. 765.
(xxii) Rajkumar Pandurang Narute vs. State of Maharashtra
Criminal Application No. 488 of 2011.
(xxiii) Prabhakar V. Sinari vs. Shanker Anant Verlekar AIR
1969 SC 686.
(xxiv) Rabindranath Satpathy vs. Hina Sethy Criminal MC
No. 470 of 2004.
(xxv) State of Maharashtra vs. Shashikant s/o. Eknath
Shinde 2013 All MR (Cri.) 3060.
(xxvi) Indian Bank vs. Satyam Fibers (India) Pvt. Ltd. 1996
(5) SCC 550.
(xxvii) Lazarus Estates Ltd. vs. Beasley (1956) 2 QB 702.
(xxviii) State of U. P. vs. O. P. Sharma 1996 (7) SCC 705.
(xxix) L. V. Jadhav vs. Shankarrao Abasaheb Pawar and Ors.
AIR 1983 SC 1219.
(xxx) Trisuns Chemical Industry vs. Rajesh Agarwal and Ors.
(1999) 8 SCC 686.
J.V.Salunke,PA
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(xxxi) Rajesh Bajaj vs. State N. C. T. of Delhi and Ors. AIR
1999 SC 1216.
(xxxii) Ram Biraji Devi vs. Umesh Kumar Singh and Ors.
2006 AIR SCW 2543.
(xxxiii) State of West Bengal vs. Narayan K. Patodia AIR
2000 SC 1405.
43) For properly appreciating the rival contentions, we would
have to make a brief reference to the allegations in the complaint. The
complaint proceeds to allege that the complainants are the unmarried
son and the mother residing at the address mentioned in the cause title
with a mentally challenged daughter of the complainant No. 1 mother.
Her second daughter Smt. Sumita Karani is residing elsewhere with her
husband. Sumita Karani has three sons, one resides at Andheri, one at
Dubai and one in USA. It is claimed that Sumita Karani has sold her
Vashi flat as also her Andheri flat, that is something with which we are
not concerned. It is alleged that in or around August, 2010, Manoj
Karani, the grandson of complainant No. 1 and son of Sumita Karani
residing at Dubai approached complainant No. 1 with an intention of
obtaining her signatures forcibly on some documents and obtaining her
bank details. Complainant No. 1 claims to have severed her relations
with her daughter Sumita Karani and her grandsons in 2007. When this
incident happened in August, 2010, the complainants protested and the
grandson of complainant No. 1 Manoj Karani left the premises of the
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complainants. But his threats and intimidation continued and that is
why they approached the nearest police station to lodge a complaint
against him. However, it is alleged that cognizance of the same was not
taken. The police only registered a non-cognizable case. However, it is
alleged that the threats from the grandson continued and the
complainants were threatened with dire consequences by the grandson
and by stating that he has links with the underworld. The matter was
followed up constantly by the complainants, but they were informed
that the police cannot assist them, as the dispute is of civil nature.
Then, there were protests from complainant No. 1 and she addressed
complaints, including to the Chief Minister of the State. She also sat on
a protest fast. However, the allegations are that instead of the police
assisting the complainants, they visited their house and the names of
the police officers are set out in para 10 and thereafter, the
complainants were taken away from their residence and the mentally
challenged daughter of complainant No. 1 remained at the residence
alone. The complainants were taken to the police station and made to
sit and later on they were shown as arrested and produced before the
Magistrate. Thus, the allegations are that instead of assisting the
complainants and registering their case, they themselves were shown as
accused and illegally arrested by the police officers of the concerned
police station. On their production before the learned Magistrate, these
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complainants were let off. However, it is thereafter that they protested
against their illegal detention and moved this Court by filing a Writ
Petition being Writ Petition (Cri.) No. 1857 of 2012. This Court having
accepted the allegations, directed payment of compensation for this
illegal and unlawful arrest. However, this Court did not issue a writ of
mandamus directing prosecution of guilty police officials. This Court
gave liberty to the Petitioners therein (complainant Nos. 1 and 2) to
launch criminal prosecution if so advised. The complainants have,
pursuant to this liberty filed the instant complaint. They, however,
make allegations in this complaint that an affidavit of the Senior Police
Inspector was filed in the High Court proceedings denying the
allegations of ill-treatment and handcuffing. However, this Court found
that the affidavit does not disclose the true state of affairs and that the
version of the complainants inspires confidence. This Court came to the
conclusion that the directions of the Hon'ble Supreme Court in the case
of D. K. Basu (supra) have not been complied with. The specific
allegation, thereafter, in the complaint, is that when this Court perused
the documents filed by the Assistant Public Prosecutor it recorded in its
judgment that the station diary entry No. 26 does not make any
reference to the complainant and that the complainants declined to sign
the arrest form. Further, the affidavit of Senior Police Inspector
Raosaheb Sardesai dated 3rd August, 2012 does not make any reference
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to the arrest form being drawn. Thus, the record of the Writ Petition
has been relied upon to allege commission of serious offences. The
allegations are based on the stand taken in the affidavit in reply filed in
the Petition in this Court and the documents referred in these affidavits.
It is the case of the complainants that there is tampering and forgery of
the official records and that is to support the arrest of the complainants,
which was subsequently found to be illegal and unconstitutional.
44) The complainants rely on the station diary entry and it is
alleged that there is not even a reference to the arrest form. There is no
entry in the station diary that arrest form was drawn and the
complainant and her son declined to sign the same.
45) It is pertinent to note that in the judgment of this Court in
Writ Petition (Cri.) No. 1857 of 2012 it is held that at the time when the
police officers visited the residence of complainant No. 1, she was
neither sitting on hunger fast nor had she taken any steps at initiating
the fulfillment of the threat of suicide. If complainants had been
arrested, as is contended by the police officials, the signatures of the
complainants ought to have appeared on the arrest panchanama. This
Court held that the version of the Respondent police officials that the
complainants declined to sign the panchanama is after thought. There
is no corresponding station diary entry which would fortify the
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submission of the police officials that the complainants had declined to
sign the arrest form. This Court held that the complainants were called
to the police station under the pretext that an offence would be
registered on the basis of the complaint of complainant No. 1, however,
they were detained in the police station and thereafter suddenly
produced in the Court of the Magistrate and to their dismay learnt that
they had been arrested. Thus, this Court found that it can award
damages/compensation to the complainants for the illegal arrest, but as
far as directing the police to register an offence, that is not possible in
the Writ Jurisdiction and the complainants are at liberty to initiate such
proceedings as are permissible in law.
46) It is not necessary for us to express any conclusive opinion
with regard to the allegations in the complaint. We are of the view that
a perusal of the complaint as a whole reveals that there are specific
allegations at least against two police officials, both of whom are
Petitioners before us in Writ Petition (Cri.) No. 439 of 2014. We have
found that there are specific allegations against these officials and of a
prima facie nature showing the complainants as accused in a criminal
case, forgery in station diary and violations of the directions of the
Hon'ble Supreme Court in D. K. Basu's case (supra), while effecting
arrest. The complainants have stated in the complaint that the original
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arrest form, which was produced, contains endorsement, which was
subsequently made that the arrestee declined to sign the arrest form.
The handwriting appears to be different than the handwriting in which
full details have been filled in. These allegations have been made in the
complaint and by arraying two police officials Laxman Kale and
Raosaheb Sardesai as accused Nos. 1 and 2. The allegations against
these two police officials are of the aforesaid nature. They are to be
found in several paragraphs in the complaint and which pertain to the
illegal arrest and thereafter filing of an affidavit justifying it. That
affidavit dated 3rd August, 2012, filed in Writ Petition (Cri.) No. 1857 of
2012 is specifically referred to in the complaint and a copy thereof has
been annexed. There are allegations with regard to the tampering and
forging of the police station records. It is in these circumstances that we
find that there is prima facie material as far as these two accused are
concerned.
47) The arguments of these accused, in their Petition, are not
independent but they adopt the stand of the Petitioners in Writ Petition
(Cri.) No.427 of 2014. Mr. Thorat, then places reliance upon the
principles laid down in the judgment of the Hon'ble Supreme Court in
the case of Maksud Saiyed vs. State of Gujarat and Ors. reported in
(2008) 5 SCC 668. The Hon'ble Supreme Court, in this judgment has
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set out and reiterated the well settled principles. While exercising
jurisdiction under section 156(3) or section 200 of the Code of Criminal
Procedure Code, 1973, the Magistrate is required to apply his mind.
Summoning of an accused in a criminal case is a serious matter and the
criminal law cannot be set into motion as a matter of course. We are
aware of these principles, but what we find is that the learned Judge in
the present case perused the complaint, heard complainant No. 2 and
perused the documents. After referring to the allegations in the
complaint and the judgment and order of this Court in the Criminal
Writ Petition, the learned Judge expressed her agreement with the
arguments of complainant No. 2. She arrived at a prima facie opinion
that the complaint makes out a case for directing the concerned police
station to investigate the crime insofar as the offence under Chapter XI
of the Indian Penal Code. It contains sections carving out offences of
giving false evidence, fabricating false evidence, punishment for false
evidence, giving or fabricating false evidence with intent to procure
conviction of offence with imprisonment for life or imprisonment for a
term, causing disappearance of evidence of offence or giving false
information to screen offender in a capital offence, making false
statement in a declaration, which is by law receivable as evidence, using
such declaration knowingly to be false, conspiring with each other and
to commit these offences so also offences punishable under sections
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466, 469, 471, 474, 167, 197 of the Indian Penal Code. Thus, prima
facie allegations pertain to public servant framing an incorrect
document with an intent to cause injury, using that document and to
support a version of the accused and detention of the complainants,
which was subsequently declared as illegal and unconstitutional and
forgery and tampering with public records. At this prima facie stage, we
are not concerned with the merits of these allegations. Suffice it to
state that we have, as far as accused Nos. 1 and 2 are concerned, found
that the complaint, if read as a whole, makes out a case of commission
of a criminal offence. All further steps pursuant to the directions of the
learned Magistrate under section 156(3) of the Code of Criminal
Procedure, 1973 would necessarily follow. At this stage, we are not
concerned with the guilt of the Petitioners in Writ Petition (Cri.) No.439
of 2014. These Petitioners are the original accused Nos. 1 and 2.
48) The argument of Mr. Thorat, thereafter, is that these
complainants themselves have indulged in several objectionable acts,
including casting serious aspirations on the integrity of some of the
Hon'ble Judges of this Court. In that regard, our attention is invited to
the order passed in Criminal Writ Petition No. 4188 of 2014 filed by
these complainants by naming some of the Hon'ble Judges as party
Respondents. We do not see how this act of the complainants has any
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relevance to the present controversy. We need not express any opinion
on the conduct of the complainants.
49) Mr. Thorat then argued that the learned Judge has failed to
record the requisite satisfaction in law. He would submit that the order
is cryptic and contains no reasons. However, we do not think that the
learned Judge was required to render any elaborate or detailed
findings. The order reveals the prima facie satisfaction arrived at after
perusal of the complaint, documents, including the judgment and order
of this Court and the brief submissions of the complainants. This Court
itself, in its judgment, has referred to the stand of the
Respondents/original accused Nos. 1 and 2 in the affidavit in reply and
the learned Judge, bearing in mind the allegations of conspiracy has
found a prima facie case for directing investigation under section 156(3)
of the Code of Criminal Procedure, 1973. As far as these two accused
are concerned, namely accused Nos. 1 and 2, we do not find that the
impugned order is vitiated by a non application of mind or excess of
jurisdiction. The prima facie allegations are that these two accused
conspired and sought to take revenge on the complainants, therefore,
they were arrested illegally and jailed in a false case. It is in these
circumstances, we do not find the order of the learned Judicial
Magistrate, First Class, Vashi to be patently illegal or erroneous so as to
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call for interference in writ jurisdiction under Article 226 of the
Constitution of India read with section 482 of the Code of Criminal
Procedure, 1973, at the instance of the Petitioners in Writ Petition (Cri.)
No. 439 of 2014.
50) As far as the contentions with regard to prior sanction so as
to initiate criminal action against these police officials, what we find is
that the learned Judge in para 2 of the order held that whether these
police officers will be immune from prosecution is a matter of trial and
passing order under section 156(3) of the Code of Criminal Procedure,
1973 is part of investigation and not a cognizance of an offence taken
by the Court. The concerned investigating officer to whom the matter
will be assigned is at liberty to get sanction as provided under the law.
Great emphasis has been laid in the grounds of Writ Petition (Cri.) No.
439 of 2014 on the correctness of these prima facie observations. The
specific ground in that regard and which appears to have been
completely copied from the memo of the Writ Petition (Cri.) No. 427 of
2014 is that the impugned order and the private complaint deserve to
be quashed and set aside for simple reason that before filing such
complaint, no sanction, envisaged under section 197 of the Code of
Criminal Procedure, 1973 is obtained by the complainants. If the
allegations in the complaint are perused, the same will reveal that the
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complaint is at the most in respect of illegal arrest and wrongful
detention of Respondent Nos. 1 and 2 and also in respect of preparation
of arrest panchanama. It is therefore submitted that the said act alleged
is in discharge of official duty. Hence, sanction envisaged by section
197 of the Code of Criminal Procedure, 1973 is required even for filing
a private complaint. Since that is not obtained, the private complaint as
well as the impugned order deserve to be quashed and set aside.
51) It is not necessary to go into rival contentions on this point
simply because Mr. Thorat's arguments overlook the basic difference
and noted in the sanction that is required by section 197 of the Code of
Criminal Procedure, 1973 and by section 19 of the Prevention of
Corruption Act, 1988. In a decision in the case of General Officer
Commanding vs. CBI and Anr. reported in AIR 2012 SC 1890, the
Hon'ble Supreme Court has re-emphasised the legal principles. It has
reiterated its earlier view in the case of Shambhoo Nath Misra vs. State
of U. P. reported in AIR 1997 SC 2102. In Sambhoo Nath's case (supra),
the Hon'ble Supreme Court held as under:-
".....
4. Section 197(1) postulates that "when any person who is a
public servant not removable from his office, save by or with the
sanction of the Government, is accused of any offence alleged to
have been committed by him, while acting or purporting to act
in the discharge of his official duty, no Court shall take
cognizance of such offence except with the previous sanction of
the appropriate Government/authority". The essential
requirement postulated for sanction to prosecute the public
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servant is that the offence alleged against the public servant
must have been done while acting or purporting to act in the
discharge of his official duties. In such a situation, it postulates
that the public servant's act is in furtherance of his performance
or his official duties. If the act/omission is integral to
performance of public duty, the public servant is entitled to the
protection under Section 197(1) of Cr. P. C. without previous
sanction, the complaint/charge against him for the alleged
offence cannot be proceeded with the trial. The sanction of the
appropriate Government or competent authority would be
necessary to protect a public servant from needless harassment
or prosecution. The protection of sanction is an assurance to an
honest and sincere officer to perform his public duty honestly
and to the best of his ability. The threat of prosecution
demoralises the honest officer. The requirement of sanction by
competent authority of appropriate Government is an assurance
and protection to the honest officer who does official duty to
further public interest. However, performance of public duty
under colour of public duty cannot be camouflaged to commit
crime. Public duty may provide him an opportunity to commit
crime. The Court to proceed further in the trial or the enquiry,
as the case may be, applies its mind and records a finding that
the crime and the official duty are not integrally connected.
5. The question is: when the public servant is alleged to
have committed the offence of fabrication of record or
misappropriation of public fund etc. can be said to have acted in
discharge of his official duties? It is not the official duty of the
public servant to fabricate the false record and misappropriate
the public funds etc. in furtherance of or in the discharge of his
official duties. The official capacity only enables him to fabricate
the record or misappropriate the public fund etc. It does not
mean that it is integrally connected or inseparably interlinked
with the crime committed in the course of same transaction, as
was believed by the learned Judge. Under these circumstances,
we are of the opinion that the view expressed by the High Court
as well as by the trial Court on the question of sanction is clearly
illegal and cannot be sustained.
....."
52) In the later decision (AIR 2012 SC 1890), while following
this view, the Hon'ble Supreme Court has held as under:-
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".....
22. The protection given under Section 197, Cr. P. C. is to
protect responsible public servants against the institution of
possibly vexatious criminal proceedings for offences alleged to
have been committed by them while they are acting or
purporting to act as public servants. The policy of the
legislature is to afford adequate protection to public servants to
ensure that they are not prosecuted for anything done by them
in the discharge of their official duties without reasonable cause,
and if sanction is granted, to confer on the Government, if they
choose to exercise it, complete control of the prosecution. This
protection has certain limits and is available only when the
alleged act done by the public servant is reasonably connected
with the discharge of his official duty and is not merely a cloak
for doing the objectionable act. Use of the expression "official
duty" implies that the act of omission must have been done by
the public servant in the course of his service and that it should
have been done in discharge of his duty. The section does not
extend its protective cover to every act or omission done by a
public servant in service but restricts its scope of operation to
only those acts or omissions which are done by a public servant
in discharge of official duty. If on facts, therefore, it is prima
facie found that the act or omission for which the accused was
charged had reasonable connection with discharge of his duty,
then it must be held to be official to which applicability of
Section 197, Cr. P. C. cannot be disputed. (See R. Balkrishna
Pillai v. State of Kerala & Anr., AIR 1996 SC 901: (1996 AIR
SCW 293); Center for Public Interest Litigation & Anr. v. Union
of India & Anr., AIR 2005 SC 4413 : (2005 AIR SCW 5252);
Rakesh Kumar Mishra v. State of Bihar & Ors., AIR 2006 SC
820 : (2006 AIR SCW 189); Anjani Kumar v. State of Bihar &
Ors., AIR 2008 SC 1992 : (2008 AIR SCW 2870); and State of
Madhya Pradesh v. Sheetla Sahai & Ors., (2009) 8 SCC 617 :
(AIR 2009 SC (Supp) 1744 : 2009 AIR SCW 5514)).
23. The question to examine as to whether the sanction is
required or not under a statute has to be considered at the time
of taking cognizance of the offence and not during enquiry or
investigation. There is a marked distinction in the stage of
investigation and prosecution. The prosecution starts when the
cognizance of offence is taken. It is also to be kept in mind that
the cognizance is taken of the offence and not of the offender.
The sanction of the appropriate authority is necessary to protect
a public servant from unnecessary harassment or prosecution.
Such a protection is necessary as an assurance to an honest and
sincere officer to perform his public duty honestly and to the
best of his ability. The threat of prosecution demoralises the
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honest officer. However, performance of public duty under
colour of duty cannot be camouflaged to commit a crime. The
public duty may provide such a public servant an opportunity to
commit crime and such issue is required to be examined by the
sanctioning authority or by the court. It is quite possible that
the official capacity may enable the public servant to fabricate
the record or mis-appropriate public funds etc. Such activities
definitely cannot be integrally connected or inseparably inter-
linked with the crime committed in the course of the same
transaction. Thus, all acts done by a public servant in the
purported discharge of his official duties cannot as a matter of
course be brought under the protective umbrella of requirement
of sanction. (Vide: The State of Gujarat, AIR 1968 SC 1323;
Hareram Satpathy v. Tikaram Agarwala & Ors., AIR 1978 SC
1568; State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 3
SCC 339; Anil Saran v. State of Bihar & Anr., AIR 1996 SC 204 :
(1995 AIR SCW 3937); Shambhoo Nath Misra v. State of U. P. &
Ors., AIR 1997 SC 2102 : (1997 AIR SCW 1938); and
Choudhury Parveen Sultana v. State of West Bengal & Anr., AIR
2009 SC 1404 : (2009 AIR SCW 861)).
24. In fact, the issue of sanction becomes a question of
paramount importance when a public servant is alleged to have
acted beyond his authority or his acts complained of are in
dereliction of the duty. In such an eventuality, if the offence is
alleged to have been committed by him while acting or
purporting to act in discharge of his official duty, grant of prior
sanction becomes imperative. It is so, for the reason that the
power of the State is performed by an executive authority
authorised in this behalf in terms of the Rules of Executive
Business framed under Article 166 of the Constitution of India
insofar as such a power has to be exercised in terms of Article
162 thereof. (See : State of Punjab & Anr. v. Mohammed Iqbal
Bhatti, (2009) 17 SCC 92 : (2010 AIR SCW 1186)).
.....
27. This Court in Suresh Kumar Bhikamchand Jain v. Pandey
Ajay Bhushan & Ors., AIR 1998 SC 1524 : (1998 AIR SCW 544),
held as under:
"..... The legislature mandate engrafted in sub-section (1) of Section
197 debarring a Court from taking cognizance of an offence except
with a previous sanction of the concerned Government in a case
where the acts complained of are alleged to have been committed by
public servant in discharge of his official duty or purporting to be in
the discharge of his official duty and such public servant is not
removable from his office save by or with the sanction of the
Government touches the jurisdiction of the Court itself. It is a
prohibition imposed by the statute from taking cognizance, the
accused after appearing before the Court on process being issued, by
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an application indicating that Section 197(1) is attracted merely
assist the Court to rectify its error where jurisdiction has been
exercised which it does not possess. In such a case there should not
be any bar for the accused producing the relevant documents and
materials which will be ipso facto admissible for adjudication of the
question as to whether in fact Section 197 has any application in the
case in hand. It is no longer in dispute and has been indicated by this
Court in several cases that the question of sanction can be considered
at any stage of the proceedings."
28. In Matajog Dobey v. H. C. Bhari, AIR 1956 SC 44, the
Constitution Bench of this Court held that requirement of sanction
may arise at any stage of the proceedings as the complaint may not
disclose all the facts to decide the question of immunity, but facts
subsequently coming either to notice of the police or in judicial
inquiry or even in the course of prosecution evidence may establish
the necessity for sanction. The necessity for sanction may surface
during the course of trial and it would be open to the accused to place
the material on record for showing what his duty was and also the acts
complained of were so inter-related or inseparably connected with his
official duty so as to attract the protection accorded by law. The court
further observed that difference between "acting or purporting to act"
in the discharge of his official duty is merely of a language and not of
substance.
On the issue as to whether the court or the competent authority
under the statute has to decide the requirement of sanction, the court
held:
"Whether sanction is to be accorded or not is a matter for the
Government to consider. The absolute power to accord or withhold
sanction conferred on the government is irrelevant and foreign to the
duty cast on the Court, which is the ascertainment of the true nature
of the act...... 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."
.....
39. In broad and literal sense 'cognizance' means taking notice of
an offence as required under Section 190, Cr. P. C. 'Cognizance'
indicates the point when the court first takes judicial notice of an
offence. The court not only applies its mind to the contents of the
complaint/police report, but also proceeds in the manner as indicated
in the subsequent provisions of Chapter XIV of the Cr. P. C. (Vide: R.
R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207; and State of
W. B. & Anr. v. Mohd. Khalid & Ors., (1995) 1 SCC 684 : (AIR 1995
SC 785 : 1995 AIR SCW 559)."
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53) In such circumstances, for the present, we do not feel that
the impugned order requires interference on the point of fulfillment of
the requirement of prior sanction under section 197 of the Code of
Criminal Procedure, 1973.
54) As far as the other Criminal Writ Petition No. 427 of 2014 is
concerned, there, the two Petitioners were, at the relevant time, serving
as Deputy Commissioner of Police Zone - I, Vashi, Navi Mumbai and the
Petitioner No. 2 was, at the relevant time, working as Commissioner of
Police, Navi Mumbai. As far as these two Petitioners are concerned, a
perusal of the complaint and as a whole does not reveal that any
specific act is attributed to them. The allegation against them in para
23 is that they submitted a false reply, but reference in this very
paragraph is made to the affidavit of accused No. 1 Laxman Kale dated
22nd February, 2013. During the course of arguments, however, the
complainant submitted that even these two officers and particularly
Petitioner No. 2 have been named by them for their overt acts. The
reference in that regard is made to a complaint made against Petitioner
No. 2 and highlighting his role. That complaint is contained in a letter
to the Registry of this Court dated 20th January, 2012. The request is to
peruse this letter and then draw the requisite inferences. It is stated
that the falsity of the stand of this Petitioner was revealed when the
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complaint that was made by the complainants to all higher authorities
and dignitaries including the Hon'ble Prime Minister of India was
forwarded to this Court and this Court sent a letter to Petitioner No. 1
forwarding therewith copies of the complaints of the complainants.
Thus, the allegations are that without the consent and approval of the
then Deputy Commissioner of Police and the Commissioner of Police,
Navi Mumbai, the other two accused, who are subordinate officials,
would not have dared effecting arrest of the complainants and
thereafter tried to support it though it was patently illegal and
unconstitutional.
55) We do not see how, at this prima facie stage, even from
these allegations, could a conclusion be drawn that there is a conspiracy
and of which these two Petitioners are also a part. Mr. Desai, learned
Senior Counsel is right in his contentions that as far as these Petitioners
are concerned, there are no prima facie findings in the impugned order.
The learned Judge has merely held that the accused are police officers
posted at Navi Mumbai. However, there is no reference to any specific
act and attributable to the Petitioners in Writ Petition (Cri.) No. 427 of
2014, original accused Nos. 3 and 4. If there is an averment or
complaint for violation of the principles laid down by the Hon'ble
Supreme Court in the case of D. K. Basu (Supra) and the judgment and
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order of this Court in the Criminal Writ Petition of the complainants,
then, that by itself was not enough at this prima facie stage to direct
investigation by the concerned police station qua these accused. Prima
facie, these accused were approached in relation to certain acts
attributed to original accused Nos. 1 and 2. From that alone, at this
prima facie stage, no inference could have been drawn by the learned
Magistrate so as to direct investigation under section 156(3) of the
Code of Criminal Procedure, 1973. We do not find the requisite prima
facie satisfaction from the order of the learned Magistrate impugned in
this case. That these two police officers, who are high ranking, have
been arrayed as accused in relation to the illegal and unconstitutional
arrest of the complainants is true but whether they conspired and
brought about this arrest and prima facie in what manner having not
been indicated nor the record before this Court revealing this position
that we are of the opinion that the impugned order as against them
cannot be sustained. As far as these high ranking police officers are
concerned, the learned Judge should have applied her mind and on
careful perusal of all the materials, proceeded in accordance with law.
56) The learned Judge should have adverted to the caution
administered by the Hon'ble Supreme Court in several decisions. The
Hon'ble Supreme Court has cautioned the Magistrates that while
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exercising their powers under section 156(3) of the Code of Criminal
Procedure, 1973, they should not act in a mechanical or casual manner
and go on with the complaint after getting the report. The Magistrate is
required to apply his mind and that application of mind should be
reflected in the order. Though detailed expression of his/her views is
not required or warranted, but the prima facie reasons must indicate
application of mind to the relevant facts.
57) It is not necessary for us to examine the rival contentions
and particularly about the requirement of obtaining prior sanction
against these accused. The reliance of Mr. Desai on the judgment of the
Hon'ble Supreme Court in the case of Anil Kumar and Ors.(supra) need
not be considered any further, for, that was a case where the Special
Judge/Magistrate referred a private complaint made under section 200
of the Code of Criminal Procedure, 1973, for investigation in exercise of
powers conferred under section 156(3) of the Code of Criminal
Procedure without the provision of valid sanction order under section
19 of the Prevention of Corruption Act, 1988. Having found that the
requirement of sanction for offences punishable under the Prevention of
Corruption Act, 1988 and the Indian Penal Code is distinct and
separate, we do not wish to pursue the reliance on this judgment any
further. Similarly, the judgment which has been relied and of this Court
in Criminal Writ Petition No. 4775 of 2014 in the case of Mr.
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Pandharinath Narayan Patil and Ors. vs. The State of Maharashtra
decided on 30th March, 2015, we find that the grievance raised by the
original complainant in the application and the offences registered
against the Petitioner in that case related to the act performed by them
in discharge of their official duty and found to be reasonably connected
therewith. Therefore, they attracted the bar under section 197 of the
Code of Criminal Procedure, 1973. In that context, the duty of the
Magistrate has been emphasised.
58)
We are mindful of the dictum in the Hon'ble Supreme Court
judgment in the case of Mrs. Priyanka Srivastava and Anr. (supra).
Moreover, we have applied the very principles to the facts of the present
case.
59) As a result of the above discussion, we find that for the
time being and presently on the materials produced, the learned
Magistrate was not justified in directing the investigation under section
156(3) of the Code of Criminal Procedure insofar as the original
accused Nos. 3 and 4, the Petitioners in Writ Petition (Cri.) No. 427 of
2014. The Rule in that Petition requires to be made absolute. The
order passed by the learned Magistrate is therefore quashed and set
aside only insofar as the original accused Nos. 3 and 4 are concerned.
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60) The complainants, throughout argued that this Court
cannot consider the submissions of Mr. Desai and accept them, for, that
would result in putting a premium on the illegal and unconstitutional
acts of the high ranking police officials. Their contentions throughout
are that even the high ranking police officials are not above law.
Further, they argued that the charges are not under the Prevention of
Corruption Act, 1988. Then, they argued that the charge against them
is not for any offence punishable under the Prevention of Corruption
Act, 1988 but for offences punishable under the Indian Penal Code.
Therefore, requirement of previous sanction as far as they are
concerned is not required to be adhered to.
61) We have clarified that we have not considered the issue of
sanction nor have we quashed the impugned order qua these accused
on the ground of non consideration of the issue of prior sanction under
section 197 of the Code of Criminal Procedure, 1973. We have quashed
and set aside the impugned order against them only because the
learned Judge failed to adhere to the binding principles as laid down in
the Hon'ble Supreme Court judgment while ordering investigation
under section 156(3) of the Code of Criminal Procedure, 1973. The
caution administered by the Hon'ble Supreme Court should have been
present to the mind of the learned Judge. She was required to apply
her mind and her application of mind should have been reflected in the
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reasons assigned by her to direct criminal investigation against all
accused. It was necessary for her to have referred to the specific
allegations and the role of accused Nos. 3 and 4 and merely because
they were, at the relevant time, posted as the Deputy Commissioner of
Police and the Commissioner of Police, Navi Mumbai, should not have
resulted in directing investigation qua them. The allegations in the
complaint required at least a prima facie scrutiny and ordering
investigation under section 156(3) is not a mechanical or casual act. It
is on that ground that we have faulted the impugned order.
61A) In the view that we have taken, it is not necessary to refer
to all the judgments cited by the complainants appearing in person.
Some of them are not necessary to be referred to simply because they
are on the point of maintainability of the Criminal Writ Petitions and
grant of any interim stay/relief therein and its duration. Since the
Criminal Writ Petitions were admitted and were ripe for hearing, we
decided to dispose of them finally. Therefore, the point of
maintainability need not be gone into. Once it need not be gone into,
then, the question, whether a Criminal Writ Petition would lie or the
Petitioners are obliged to file a Criminal Application need not be
decided. Even the judgments on that point require no further reference.
Similarly, we have not gone into the other aspect as to whether a
interim stay was required to be granted in both the Petitions and if so,
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what should have been its duration. Once the matters are decided
finally by this judgment, then, the legal principles and the judgments
highlighting them are not required to be referred any further. Lastly,
the judgments cited on the point of sanction under section 197 of the
Code of Criminal Procedure, 1973 by the complainants need not be
referred because we have already reproduced, in paras 51 and 52, the
paragraphs from a recent Supreme Court judgment so as to remind all
concerned about the ambit and scope of section 197 of the Code of
Criminal Procedure, 1973 and its application to the facts and
circumstances of the given case. Therefore, each and every judgment
cited by the complainants on this point need not be referred any further.
The learned Magistrate having referred to the judgment of this Court in
Criminal Writ Petition No. 1857 of 2012 and thereafter directed the
investigation under section 156(3) of the Code of Criminal Procedure,
1973 against the Petitioners in Criminal Writ Petition No. 439 of 2014,
which order we have upheld, then, all the more the issue of sanction
and prior to the directions issued, need not be considered in further
details. We clarify that the issue of sanction and the application of the
legal principles summarised above is open for being raised and
considered. We have not foreclosed the arguments of both sides on the
same.
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62) With this clarification, it is strictly not necessary to observe
anything more. However, the complainants are appearing in person and
have throughout argued their case in person. We are not giving any
clean chit nor acquitting any police officials, including high ranking
police officials. It is obvious that the complainants are not aware of the
niceties or intricacies of criminal law. They are also not aware of the
ambit and scope of the powers conferred on a criminal Court. It is not
as if the criminal Court is powerless. It is not as if all materials have to
be produced and to support the allegations in the private complaint and
for not producing them at the threshold, the complainants must suffer.
The law guarantees justice and provides adequate safeguards against
miscarriage of justice. In this regard, it is not necessary to observe and
clarify that if after investigation and during the course of trial further
material emerge and which would show the involvement or complicity
of even these high ranking police officials, then, the criminal Court is
not precluded or prevented in law from proceeding against them and by
naming them as accused. In that regard, the following principles
emerging from applicability of section 319 of the Code of Criminal
Procedure are relevant. In a Constitution Bench judgment in the case of
Hardeep Singh vs. State of Punjab and Ors. reported in AIR 2014 SC
1400 the Hon'ble Supreme Court has guided the criminal Courts as
under:-
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".....
35. In view of the above, the law can be summarised to the
effect that as 'trial' means determination of issues adjudging the
guilt or the innocence of a person, the person has to be aware
of what is the case against him and it is only at the stage of
framing of the charges that the court informs him of the same,
the 'trial' commences only on charges being framed. Thus, we
do not approve the view taken by the courts that in a criminal
case, trial commences on cognizance being taken.
36. Section 2(g), Cr. P. C. and the case laws referred to above,
therefore, clearly envisage inquiry before the actual
commencement of the trial, and is an act conducted under
Cr.P.C. by the Magistrate or the court. The word 'inquiry' is,
therefore, not any inquiry relating to the investigation of the
case by the investigating agency but is an inquiry after the case
is brought to the notice of the court on the filing of the charge-
sheet. The court can thereafter proceed to make inquiries and
it is for this reason that an inquiry has been given to mean
something other than the actual trial.
37. Even the word "course" occurring in Section 319, Cr.P. C.,
clearly indicates that the power can be exercised only during
the period when the inquiry has been commenced and is going
on or the trial which has commenced and is going on. It covers
the entire wide range of the process of the pre-trial and the trial
stage. The word "course" therefore, allows the court to invoke
this power to proceed against any person from the initial stage
of inquiry upto the stage of the conclusion of the trial. The
court does not become functus officio even if cognizance is
taken so far as it is looking into the material qua any other
person who is not an accused. The word "course" ordinarily
conveys a meaning of a continuous progress from one point to
the next in time and conveys the idea of a period of time;
duration and not a fixed point of time. (See: Commissioner of
Income-tax, New Delhi (Now Rajasthan) v. M/s. East West
Import & Export (P) Ltd. (Now known as Asian Distributors
Ltd.) Jaipur, AIR 1989 SC 836.
38. In a somewhat similar manner, it has been attributed to
word "course" the meaning of being a gradual and continuous
flow advanced by journey or passage from one place to another
with reference to period of time when the movement is in
progress. (See: State of Travancore-Cochin & Ors. vs.
Shanmugha Vilas Cashewnut Factory, Quilon, AIR 1953 SC
333).
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39. To say that powers under Section 319, Cr. P. C., can be
exercised only during trial would be reducing the impact of the
word 'inquiry' by the court. It is a settled principle of law that
an interpretation which leads to the conclusion that a word
used by the legislature is redundant, should be avoided as the
presumption is that the legislature has deliberately and
consciously used the words for carrying out the purpose of the
Act. The legal maxim "A Verbis Legis Non Est Recedendum"
which means, "from the words of law, there must be no
departure" has to be kept in mind.
40) The court cannot proceed with an assumption that the
legislature enacting the statute has committed a mistake and
where the language of the statute is plain and unambiguous,
the court cannot go behind the language of the statute so as to
add or subtract a word playing the role of a political reformer
or of a wise counsel to the legislature. The Court has to
proceed on the footing that the legislature intended what it has
said and even if there is some defect in the phraseology etc., it
is for others than the court to remedy that defect. The statute
requires to be interpreted without doing any violence to the
language used therein. The court cannot re-write, recast or
reframe the legislation for the reason that it has no power to
legislate.
41. No word in a statute has to be construed as surplusage.
No word can be rendered ineffective or purposeless. Courts are
required to carry out the legislative intent fully and completely.
While construing a provision, full effect is to be given to the
language used therein, giving reference to the context and other
provisions of the Statute. By construction, a provision should
not be reduced to a "dead letter" or "useless lumber". An
interpretation which renders a provision an otiose should be
avoided otherwise it would mean that in enacting such a
provision, the legislature was involved in "an exercise in
futility" and the product came as a "purposeless piece" of
legislation and that the provision had been enacted without any
purpose and the entire exercise to enact such a provision was
"most unwarranted besides being uncharitable." (Vide: Patel
Chunibhai Dajibha etc. v. Narayanrao Khanderao Jambekar &
Anr., AIR 1965 SC 1457; The Martin Burn Ltd. v. The
Corporation of Calcutta, AIR 1966 SC 529; M. V. Elisabeth &
Ors. v. Harwan Investment & Trading Pvt. Ltd. Hanoekar House,
Swatontapeth, Vasco-De-Gama, Goa, AIR 1993 SC 1014;
Sultana Begum v. Prem Chand Jain, AIR 1997 SC 1006; State of
Bihar & Ors. etc. etc. v. Bihar Distillery Ltd. etc. etc., AIR 1997
SC 1511; Institute of Chartered Accountants of India v. M/s.
Price Waterhouse & Anr. AIR 1998 SC 74; and The South
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Central Railway Employees Co-operative Credit Society
Employees Union, Secundrabad v. The Registrar of Co-operative
Societies & Ors., AIR 1998 SC 703).
.....
43. Since after the filing of the charge-sheet, the court
reaches the stage of inquiry and as soon as the court frames the
charges, the trial commences, and therefore, the power under
Section 319(1), Cr. P. C., can be exercised at any time after the
charge-sheet is filed and before the pronouncement of
judgment, except during the stage of Section 207/208, Cr. P. C.,
committal etc., which is only a pre-trial stage, intended to put
the process into motion. This stage cannot be said to be a
judicial step in the true sense for it only requires an application
of mind rather than a judicial application of mind.
44. At this pre-trial stage, the Magistrate is required to
perform acts in the nature of administrative work rather than
judicial such as ensuring compliance of Sections 207 and 208,
Cr. P. C., and committing the matter if it is exclusively triable by
Sessions Court. Therefore, it would be legitimate for us to
conclude that the Magistrate at the stage of Sections 207 to
209, Cr. P. C. is forbidden, by express provision of Section 319,
Cr. P. C., to apply his mind to the merits of the case and
determine as to whether any accused needs to be added or
subtracted to face trial before the Court of Session.
.....
49. It is thus aptly clear that until and unless the case reaches
the stage of inquiry or trial by the court, the power under
Section 319, Cr. P. C., cannot be exercised. In fact, this
proposition does not seem to have been disturbed by the
Constitution Bench in Dharam Pal (CB). The dispute therein
was resolved visualizing a situation wherein the court was
concerned with procedural delay and was of the opinion that
the Sessions Court should not necessarily wait till the stage of
Section 319, Cr. P. C. is reached to direct a person, not facing
trial, to appear and face trial as an accused. We are in full
agreement with the interpretation given by the Constitution
Bench that Section 193, Cr. P. C. confers power of original
jurisdiction upon the Sessions Court to add an accused once the
case has been committed to it.
50. In our opinion, the stage of inquiry does not contemplate
any evidence in its strict legal sense, nor the legislature could
have contemplated this inasmuch as the stage for evidence has
not yet arrived. The only material that the court has before it is
the material collected by the prosecution and the court at this
stage prima facie can apply its mind to find out as to whether a
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WP.427&439.2014.Judgment.doc
person, who can be an accused, has been erroneously omitted
from being arraigned or has been deliberately excluded by the
prosecuting agencies. This is all the more necessary in order to
ensure that the investigating and the prosecuting agencies have
acted fairly in bringing before the court those persons who
deserve to be tried and to prevent any person from being
deliberately shielded when they ought to have been tried. This
is necessary to usher faith in the judicial system whereby the
court should be empowered to exercise such powers even at the
stage of inquiry and it is for this reason that the legislature has
consciously used separate terms, namely, inquiry or trial in
section 319, Cr. P. C.
Accordingly, we hold that the court can exercise the
power under Section 319, Cr. P. C. only after the trial proceeds
and commences with the recording of the evidence and also in
exceptional circumstances as explained hereinabove.
.....
52. What is essential for the purpose of the section is that
there should appear some evidence against a person not
proceeded against and the stage of the proceedings is
irrelevant. Where the complainant is circumspect in proceeding
against several persons, but the court is of the opinion that
there appears to be some evidence pointing to the complicity of
some other persons as well, Section 319, Cr. P. C. acts as an
empowering provision enabling the court/Magistrate to initiate
proceedings against such other persons. The purpose of Section
319, Cr. P. C. is to do complete justice and to ensure that
persons who ought to have been tried as well are also tried.
Therefore, there does not appear to be any difficulty in invoking
powers of Section 319, Cr. P. C. at the stage of trial in a
complaint case when the evidence of the complainant as well as
his witnesses is being recorded.
53. Thus, the application of the provisions of Section 319, Cr.
P. C., at the stage of inquiry is to be understood in its correct
perspective. The power under Section 319, Cr. P. C. can be
exercised only on the basis of the evidence adduced before the
court during a trial. So far as its application during the course
of inquiry is concerned, it remains limited as referred to
hereinabove, adding a person as an accused, whose name has
been mentioned in Column 2 of the charge-sheet or any other
person who might be an accomplice.
63) It is therefore apparent that at this stage we are neither
holding that these accused Nos. 3 and 4 have no role absolutely nor our
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WP.427&439.2014.Judgment.doc
order means otherwise. It is therefore open for the Trial Court to
proceed in accordance with law and if there emerges material to apply
the principles laid down in the Constitution Bench Judgment, then, the
same can always be invoked and applied.
64) With this clarification, we conclude this judgment. Hence,
in the light of the above discussion, the following order:-
(i) Rule in Criminal Writ Petition No. 427 of 2014 is
made absolute in terms of prayer clause (a).
(ii) Rule in Criminal Writ Petition No. 439 of 2014 is
discharged and the Writ Petition is dismissed.
(iii) Criminal Application Nos. 50 and 51 of 2015 do not
survive in the light of our above conclusion.
(iv) We clarify that our observations and conclusions are
prima facie and tentative and shall not influence the criminal
Court while proceeding and trying the criminal case.
(v) All contentions on the requirement of sanction and on
merits of the charges, of both sides, are kept open.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
