Bombay High Court
Asif Yusuf Patel vs State Of Maha & Ors on 13 October, 2016
Bench: V.K. Jadhav
crwp149.03
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 149 OF 2003
Asif Yusuf patel,
Since Died through his L.Rs.
1-A) Halimabee w/o Yusuf Patel
Age 65 years, Occ. Household
1-B) Ajaj s/o Yusuf Patelig
Age 32 years, Occ. Agriculture
Both R/o. Newasa Kd,
Tq. Newasa, District Ahmednagar ...Petitioners
Versus
1. The State of Maharashtra
2. Vijaywant Jaiswal
Age 42 years, Occ. Service
Police Sub Inspector,
Newasa Police Station
Newasa, Tq. Newasa
District Ahmednagar
3. Arjun s/o Ashruba Adhave
abated as per order dated 8.12.2011
4. Gokul s/o Rupchand Pardeshi,
Age major, occ. Service
working as Police Constable
Newasa police station,
Newasa, Tq. Newasa,
District Ahmednagar ...Respondents
.....
Mr.S.D.Karkare h/f Mr.A.M. Karad advocate for the petitioner
Shri A.R. Kale, A.P.P. For respondent-State
Mr. A.M. Gaikwad advocate for respondent No.2
.....
::: Uploaded on - 15/10/2016 ::: Downloaded on - 16/10/2016 00:54:43 :::
crwp149.03
-2-
.....
CORAM : V. K. JADHAV, J.
.....
Date of Reserving the Judgment : 20.09.2016
Date of pronouncing the Judgment : 13.10.2016
...
JUDGMENT :-
1. The petitioners, are seeking quashment and setting
aside the orders dated 2.2.2002 passed below Exh.12 in
R.C.C. No. 131 of 2001 passed by the learned J.M.F.C.
Newasa and the order dated 18.9.2002 passed by the learned
IInd Additional sessions Judge, Shrirampur in Criminal
Revision application No. 49 of 2002 confirming thereby the
order passed by the Magistrate, the original complainant (now
substituted by his legal heirs) preferred this Criminal Writ
Petition.
2. Brief facts giving rise to the present writ petition are as
follows:-
a) On 22.3.2001 the original petitioner was at Bidkin in the
house of his mother's sister. In the night between 22.3.2001
and 23.3.2001, respondent Nos. 2 to 4, who were attached to
Newasa police station and working as Police Sub Inspector
and Police constables, respectively, came there. The petitioner
crwp149.03
was brought outside of the house and respondent Nos. 2 to 4
started beating him. In consequence of which, the petitioner-
complainant sustained many injuries. The petitioner was
thereafter taken to the police station at Bidkin in a jeep. In
police station his one hand and one leg tied with the help of
chain, and he was again subjected to beating. Thereafter, he
was taken to the Government Hospital at Newasa at 11.00
a.m. Dr. Zarekar, attached to the Government Hospital,
Newasa opined that there might be fracture to the leg of the
petitioner and thus advised to take the petitioner to
Ahmednagar. However, instead of taking the petitioner to the
Hospital at Ahmednagar, respondent No.2 again put him in
the lock-up and kicked on his injured leg. He was also
threatened that if he complains to the Magistrate about the
torture, he would obtain PCR and again assault him by
pouring kerosene on his buttocks.
b) On 23.3.2001 the petitioner was produced before the
J.M.F.C. Newasa in crime No. 39 of 2001 for having committed
offences punishable under Sections 147, 148, 307 and 436 of
Indian Penal Code. At that time, the petitioner had
complained about the torture at the hands of respondent Nos.
crwp149.03
2 to 4 as stated above. The learned Magistrate has accordingly
recorded the statement of the petitioner and also referred him
for medical examination to Civil Surgeon, Ahmednagar.
Furthermore, the statements of certain persons, in whose
presence, the petitioner was assaulted also came to be
recorded. The report to that effect came to be submitted to
the learned District and Sessions Judge, Ahmednagar by the
Magistrate. The learned District and Sessions Judge directed
the Magistrate to take suitable action against erring police
officials. Learned Magistrate has thereafter issued process
against respondent Nos. 2 to 4 for the offences punishable
under Section 330 r.w. 34 of I.P.C. by registering regular
criminal case vide order dated 16.8.2001 and accordingly the
case is registered as R.T.C. No. 131 of 2001.
c) Respondent Nos. 2 to 4 thereafter filed an application for
discharge. By order dated 2.2.2002 the learned Magistrate
allowed the aforesaid application. The petitioner preferred
Criminal Revision Application No. 49 of 2002. However, the
learned 2nd Additional Sessions Judge, Shrirampur by order
dated 18.9.2002 also dismissed the said Criminal Revision
Application. Hence, this writ petition.
crwp149.03
3. During pendency of this Criminal Writ Petition, the
petitioner original complainant Asif Yusuf Patel expired on
13.9.2011. By order dated 17.3.2016 this Court has allowed
criminal application No. 5213 of 2015 and thereby permitted
substitution as prayed in the said application.
4. The learned counsel for the petitioner submits that, on
22.3.2001 deceased Asif Patel was at Bidkin in the house of
his mother's sister. Respondents no. 2 to 4 who were attached
to Newasa Police Station and working as Police Sub Inspector
and Police Constables, respectively at the relevant time, came
in a private commander jeep to the house of the petitioner's
mother's sister. Immediately, they started assaulting deceased
Asif Patel by taking him out of the house. As a result, he had
sustained many injuries. Thereafter, he was taken to the
Hospital, where his one hand and leg was tied with the help of
a chain and he was again brutally assaulted by respondents 2
to 4. Deceased Asif Patel was thereafter taken to Hospital and
even after his complaint recorded by the Magistrate, he was
again referred for medical examination to Civil Surgeon,
Ahmednagar. During the course of inquiry, the learned
Magistrate has also recorded statements of certain witnesses.
crwp149.03
From the statements of the said persons and medical
certificate issued by Dr. Zarekar, it is quite clear that the
possibility of sustaining those injuries by deceased Asif Patel
while evading his arrest is completely ruled out. Learned
counsel submits that any form of torture, cruel, inhuman or
degrading treatment to the accused by the police while
discharging their official duties cannot be and could not be
said to have any connection with the official duty and
therefore cannot be protected under section 197 of the Code of
Criminal Procedure. However, the courts below failed to
appreciate the same. It is unbelievable that deceased Asif
Patel would suffer injuries as mentioned in his medical
certificate while running away by evading his arrest. The
learned counsel submits that when there is a word against
word, the proper course would have been to consider all these
questions including one of the requirement of the sanction to
prosecute the respondents 2 to 4 at the trial instead of
deciding the same at the interim stage. Learned counsel
submits that, there is a prima facie evidence to show and
establish even at the interim stage that deceased Asif Patel
was tortured by the respondents no. 2 to 4 and therefore they
are not entitled to claim immunity from prosecution for the
crwp149.03
offence under 330 of the Indian Penal Code.
5. Learned counsel for the petitioner, in order to
substantiate his submissions places reliance on the following
cases :-
i] Anjani Kumar Vs. State of Bihar and another
reported in 2008 (2) SCC (Cri) 582.
ii] Ashwin Nanubhai Vyas Vs. The State of
Maharashtra and another reported in AIR 1967
Supreme Court 983.
iii] Arnesh Kumar Vs. State of Bihar and another.
Reported in AIR 2014 Supreme Court 2756.
6. Learned counsel for respondent No.2 submits that,
respondents No. 2 to 4 are the police officers and alleged
offence had taken place while discharging their duties as
public servants. Deceased Asif Patel was an accused in Crime
No.39/2001 for having committed an offence punishable
under Sections 147, 148, 307 and 436 of Indian Penal Code.
On 22.3.2001, respondents No. 2 to 4 proceeded towards
Police Station Bidkin by making an entry to that effect in the
Station Diary of Police Station, Newasa. At about 02.00 a.m.
on 23.3.2001 they reached the police Station Bidkin and entry
to that effect was made in the Station Diary of the Police
crwp149.03
Station, Bidkin. On reaching there, they took the help of the
local police to go to village Sonpuri in order to arrest the
deceased Asif Patel. At about 3.00 to 3.30 a.m. they reached
village Sonpuri at the house of the relative of deceased Asif
Patel. By seeing police party, deceased Asif Patel started
running in the dark and therefore fell down at 3 to 4 places
and sustained injuries. Respondent No.2 PSI Jaiswal and
Respondent No.4 Police Constable Pardeshi also sustained
injuries when deceased Asif Patel tried to evade his arrest.
Even, in the Station Diary entry is taken to the effect that,
while evading arrest, deceased Asif Patel ran away in the
darkness and thus sustained injuries by fall. He was brought
to the police station Bidkin and entry to that effect was made
in the Station Diary at about 04.05 a.m. Therefore, he was
brought to the police station, Newasa. In the morning, he was
produced before the Medical Officer, PHC Newasa at about
10.15 a.m. The Medical Officer Dr. Zarekar examined
deceased Asif Patel and also recorded history from deceased
Asif Patel to the effect that he had sustained injuries while
running away. Learned counsel submits that, there is a
reasonable nexus between the Act complained and the official
duty of respondents No. 2 to 4. Therefore, sanction is
crwp149.03
required as provided under section 197 of the Criminal
Procedure Code.
7. Learned counsel for respondent no.2 in order to
substantiate his contention, places his reliance on following
cases :-
I] D.T.Virupakshappa Vs. C. Subhash reported in
AIR 2015 Supreme Court 2022.
ii] Matajog Dobey Vs. H.C.Bhari reported in AIR
1956 Supreme Court 44.
iii] Gauri Shankar Prasad Vs. State of Bihar and
another reported in AIR 2000 Supreme Court
3517.
iv] Center for Public Interest Litigation and another
Vs. Union of India and another reported in AIR
2005 Supreme Court 4413.
v] State of U.P. Versus Paras Nath Singh reported in
2009 AIR (SCW) 3712.
8. I have also heard the learned APP for the State.
9. It is a matter of the record that deceased Asif Patel was
an accused in Crime No.39/2001 for the offences punishable
under section 147, 148, 307, 436 of the Indian Penal Code.
Respondents No. 2 to 4 were deputed to arrest him and
accordingly, they had gone to Bidkin Police Station. It also
crwp149.03
reveals from the various entries in the Station Diary that
respondents No. 2 to 4 obtained help from the local Police and
went to village Sonpuri for effecting the arrest of deceased Asif
Patel.
10. Deceased Asif Patel, when his statement was recorded by
the Magistrate, had stated that, he was taken out from the
house of his relative at the said village by respondents No 2 to
4 and thereafter, he was beaten with the help of butt of gun
and also respondent No.2 PSI Jaiswal gave a blow of his
revolver on his mouth and therefore, his mouth was torn. He
was also beaten with the butt of the revolver on his back and
his right eye. He had, therefore, sustained injuries. On
perusal of injury certificate of Asif Patel, I find history of fall
while running is recorded by Dr. Zarekar attached to Primary
Health Center, Newasa. Only three injuries have been found
on the person of deceased Asif Patel and those three injuries
are simple in nature. There is no injuries on mouth as alleged
by deceased Asif Patel. Further, on the same day, and same
time, Dr. Zarekar also examined respondent No.2 P.S.I.
Jaiswal and recorded near about five injuries on his person
with the history that said PSI Jaiswal sustained injuries while
crwp149.03
catching the accused. Further, the injuries on the person of
respondent no.4 Police Constable Pardeshi also recorded with
the history of sustaining of the injuries while catching the
accused. Accordingly, MLC came to be issued by Dr. Zarekar.
11. Learned counsel for the petitioner submits that, in view
of the provisions of Section 46 of the Criminal Procedure
Code, though the police officers are permitted to actually
touch or confine the body of the person to be arrested, the
police officers are not permitted to extend the beating to the
person to be arrested. However, it appears from Sub Section
(2) of Section 46 of the Code that, if the person forcibly resists
the endeavor to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means
necessary to effect the arrest.
12. Learned counsel for respondent No.2 brought to the
notice of this Court various documents to substantiate his
contention that there is a reasonable nexus in the act
complained and official duties of respondents No. 2 to 4.
13. In the case of D.T. Virupakshappa Vs. C. Subash,
crwp149.03
(supra) relied upon by the learned counsel for respondent
No.2, the Supreme Court in paragraph No.6 of the order has
referred the case of Omprakash and others vs. State of
Jharkhand, through the Secretary, Department of Home,
Ranchi 1 and another reported in (2012) 12 SCC 72, and
quoted paragraphs 32 and 41 of the said judgment. Paras 32
and 41 read as under:-
"32.
The true test as to whether a public servant was acting or
purporting to act in discharge of his duties would be whether the
act complained of was directly connected with his official duties
or it was done in the discharge of his official duties or it was so
integrally connected with or attached to his office as to be
inseparable from it (K. Satwant Singh). The protection given
under Section 197 of the Code 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. If in doing
his official duty, he acted in excess of his duty, but there is a
reasonable connection between the act and the performance of
the official duty, the excess will not be a sufficient ground to
deprive the public servant of the protection (Ganesh Chandra
Jew). If the above tests are applied to the facts of the present
case, the police must get protection given under Section 197 of
the Code because the acts complained of are so integrally
connected with or attached to their office as to be inseparable
from it. It is not possible for us to come to a conclusion that the
protection granted under Section 197 of the Code is used by the
police personnel in this case as a cloak for killing the deceased in
cold blood. (Emphasis supplied)
crwp149.03
41. The upshot of this discussion is that whether sanction is
necessary or not has to be decided from stage to stage. This
question may arise at any stage of the proceeding. In a given
case, it may arise at the inception. There may be unassailable and
unimpeachable circumstances on record which may establish at
the outset that the police officer or public servant was acting in
performance of his official duty and is entitled to protection given
under Section 197 of the Code. It is not possible for us to hold that
in such a case, the court cannot look into any documents produced
by the accused or the public servant concerned at the inception.
The nature of the complaint may have to be kept in mind. It must
be remembered that previous sanction is a precondition for taking
cognizance of the offence and, therefore, there is no requirement
that the accused must wait till the charges are framed to raise this
plea. ..."
14. In the case cited above, question of sanction whether is
necessary or not arises at the inception and there were
unassailable and unimpeachable circumstances on record
which may establish at the outset that the police officer or
public servant was acting in performance of his official duty
and is entitled to protection given under Section 197 of the
Code. It has also observed in paragraph no.41 that, it is not
possible for the Court to hold that in such a case, the court
cannot look into any documents produced by the accused or
the public servant concerned at the inception.
crwp149.03
15. The Supreme court while examining the issue of "police
excess" during investigation and requirement of sanction for
prosecution in this regard also referred the case of State of
Orissa Through Kumar Raghvendra Singh and others vs.
Ganesh Chandra Jew reported in (2004) 8 SCC 40 and
quoted para 7 of the said case. Said para 7 reads as under :-
"7. The protection given under Section 197 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. If in
doing his official duty, he acted in excess of his duty,
but there is a reasonable connection between the act
and the performance of the official duty, the excess will
not be a sufficient ground to deprive the public servant
of the protection. The question is not as to the nature
crwp149.03
of the offence such as whether the alleged offence
contained an element necessarily dependent upon the
offender being a public servant, but whether it was
committed by a public servant acting or purporting to
act as such in the discharge of his official capacity.
Before Section 197 can be invoked, it must be shown
that the official concerned was accused of an offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duties.
It is not the duty which requires examination so much
as the act, because the official act can be performed
both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and
range of the official duties of the public servant
concerned. It is the quality of the act which is
important and the protection of this section is available
if the act falls within the scope and range of his official
duty..."
(Emphasis supplied).
16. It is true that, protection given under section 197 of the
Code has certain limitations and is available only when the
alleged act of the public servant is reasonably connected with
the discharge of his official duty and is not merely a cloak for
doing the objectionable act. It has also observed that, if a
police officer in doing his official duty, acted in excess of his
duty but there is reasonable connection between the act and
crwp149.03
performance of the official duty, the excess will not be a
sufficient ground to deprive the public servant of the said
protection.
17. In the instant case, it is not disputed that respondent
nos. 2 to 4 were discharging their duties at the material time
and even respondent no.2 P.S.I. Jaiswal and respondent No.4
P.C. Pardeshi had sustained the injuries while effecting arrest
of deceased Asif Patel. There are entries in the Station Diary
of Police Station, Newasa and Police Station, Bidkin,
demonstrating sufficiently that respondents no. 2 to 4 were
discharging their official duties while effecting the arrest of
deceased Asif Patel. It is also a part of record that, deceased
Asif Patel himself had stated before the Medical officer that he
had sustained injuries while running away for evading his
arrest at the hands of respondents no. 2 to 4. It further
appears that, deceased Asif Patel had exaggerated the things
when his statement was recorded by the Magistrate. There
were no injuries on his person to show even prima facie that
he had sustained injuries inflicted with the help of butt of gun
and revolver. Further, there is absolutely no evidence even
prima facie to show that, deceased Asif Patel's one leg and one
crwp149.03
hand was chained in the Police Station. In the backdrop of
this, respondents No. 2 to 4 are certainly entitled for the
protection as provided under section 197 of the Code of
Criminal Procedure. The learned Magistrate has therefore
rightly discharged respondents No. 2 to 4 for want of sanction.
The learned Additional Sessions Judge has also considered
this aspect and accordingly confirmed the order passed by the
Magistrate. No interference is required. I do not find any
substance in the present Criminal Writ Petition. Hence, order.
O R D E R
I. Criminal Writ Petition is hereby dismissed.
II. Rule discharged.
sd/-
( V. K. JADHAV )
JUDGE
.....
aaa/-
