Bombay High Court
Mehrunnisa Kadir Sheikh vs The State Of Maharashtra And Ors on 27 March, 2023
Bench: Prakash Deu Naik
2023:BHC-AS:9061
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1954 OF 2019
Mehrunnisa Kadir Shaikh,
Age : 55 Years, R/o. 605, Building 24,
Shanti Niketan, Vikash Prakalp Sewak Nagar,
Goregaon East, Mumbai - 400 063 ...Petitioner
Versus
1. The State of Maharashtra,
(Through Ghatkopar Police Station).
2. Sanjay S. Khedekar,
Age : Adult, Occu. : Police Sub-Inspector,
R/o. Building No. 213, Flat No.8402,
Police Officer Quarters,
Kannamwar Nagar, Vikhroli East,
Mumbai - 400 081.
3. Raghunath V. Kolekar,
Age : Adult, Occu. : Police H.C.,
R/o. Room No.116/4/8, Hanumane
Lane, Near Sandesh Vidyalaya,
Suryanagar, Vikroli (W), Mumbai - 83.
4. Sayaji S. Thombare,
Age : Adult, Occu. : Police Naik,
R/o. Building No. 70, Room No.2071,
Pant Nagar, Ghatkopar (E), Mumbai - 400 0086.
5. The Director,
Central Bureau of Investigation ...Respondents
Mr. Yug Mohit Chaudhary, Advocate for Petitioner.
Mr. Niranjan Mundargi a/w Mr. Laxman R. Shahapur a/w Mr. Rohit
Mishra a/w Kartikey Mishra, Advocate for Respondent Nos. 2 to 4.
Mr. H.S. Venegavkar, Special P. P. for Respondent No.5 - CBI.
Mr. Arfan Sait, APP for Respondent - State.
CORAM : PRAKASH D. NAIK, J.
RESERVED ON : 29th JULY, 2022.
PRONOUNCED ON : 27th MARCH, 2023
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JUDGMENT :
1. The Petitioner has challenged the order dated 3rd January,
2018 passed by learned Special Judge (CBI) below Exh.1 in
Sessions Case No.826 of 2014 directing that the record and
proceedings in C.C. No.1170/PW/2010 be transferred to Court of
learned Additional Chief Metropolitan Magistrate, 19th Court,
Esplanade, Mumbai for trial of offences punishable under Sections
120-B r/w 323, 342 of Indian Penal Code (for short 'IPC').
2. The Petitioner is the mother of deceased Altaf Kadir
Shaikh who according to her died due to custodial torture inflicted
by the Accused/Respondent Nos.2 to 4.
3. The Petitioner's contention is that on 11th September, 2009
at about 04:00 hours in the morning, the Petitioner heard a knock
at her door. Three persons were standing outside. They asked
whether Altaf is available. She told them that he is sleeping. All of
them came inside her house and on seeing Altaf sleeping they
started beating, slapping and kicking him. One of them disclosed
that he was Sub-Inspector Khedekar from Ghatkopar Police Station
and had come to pick up Altaf for his presence is required by the
SHO of Ghatkopar Police Station. She requested him that since the
SHO will not be present at the wee hours, she will drop Altaf at the
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Ghatkopar Police Station early morning. P.S.I. Khedekar did not
listen to her request and kept on slapping Altaf. Three of them
caught hold of Altaf by his collar and back of his pant and dragged
him to the auto rickshaw by kicking and punching him constantly.
They pulled Altaf's hair and slapped him on his face. They threw
him in auto rickshaw and took him to Ghatkopar Police Station.
Sub-Inspector Khedekar had told the Petitioner that she should visit
the Police Station in the morning. Two Policemen visited
Petitioner's house. They told her that she have been called at
Ghatkopar Police Station for recording her statement. She
accompanied them. On the way she was informed that Altaf has
been hit on the head and he was admitted in Rajawadi Hospital.
She was taken to Rajawadi Hospital. On reaching Rajawadi
Hospital, the Petitioner found her son's body lying on the stretcher.
His body had unbuttoned shirt and underwear. His body had
bruises. Injury marks were present at his head, hands, arms, back,
legs, ears and blood was oozing. Lady Nayab Tahsildar was
present. She was recording Panchanama. Petitioner's thumb
impression and her elder son's signatures were attested on written
and blank papers stating that Altaf's body and Panchanam is
required to be sent for conducting postmortem urgently.
Postmortem was conducted by panel of five Doctors. Petitioner was
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informed that she will get postmortem report within ten days.
Petitioners husband visited J.J. Hospital for collecting Postmortem
Report. He was told by hospital authorities that the report has
been sent to Assistant Commissioner of Police. Thereafter, it was
informed that, Postmortem Report had been sent to New Delhi.
ADR report was filed vide ADR No. 184 of 2009. The Petitioner
filed complaint agitating about the death of Altaf Shaikh in Police
custody and seeking investigation. No FIR was registered.
4. The Petitioner filed Criminal Writ Petition No. 2613 of
2009 before this Court contending that her son Altaf was killed in
Police custody. Directions were sought that case be registered
against the Police Officers, who according to her were responsible
for the murder of her son. This Court made several observations
regarding conduct of Police and held that prima facie the death of
deceased Altaf Shaikh has taken place in the Police Station as a
result of torture. Vide order dated 16th October, 2009, it was
directed that case be registered against the concerned Police
Officials and the persons who conducted the inquest for offences
under Sections 302, 201 and 330 of IPC. It was further directed
that the investigating agency may add or delete the offences as a
result of investigation, if they find that there is evidence of some
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other offence or there is no evidence of offence in which the Court
directed registration of the case. The CBI Mumbai was directed to
take up the investigation immediately and DCB, CID, who was
conducting an inquiry was directed to handover all the papers
relating to the matter to CBI immediately. The Superintendent of
Police, CBI, Mumbai was directed to conduct the investigation in all
earnestness, unmoved by any observations made in the said order.
5. The order dated 16th October, 2009 was challenged by the
Respondent Nos. 2 to 4 before the Apex Court by preferring special
leave petition. Vide order dated 23 rd November, 2009 the Apex
Court directed that FIR be registered regarding death of Altaf Kadir
Shaikh and matter be investigated by CBI without being influenced
by any of the observations made by the High Court. It was further
directed that till the report of CBI is received no action shall be
taken against any of the officials. CBI shall exercise usual powers
of investigation and submit the report expeditiously.
6. The CBI registered the FIR bearing no. BSI/2009/S/0004
on 27th November, 2009 for offences under Sections 302, 201 and
330 of IPC. In the FIR, it was stated that, on 11 th September, 2009
at about 4:00 am, Officials of Ghatkopar Police Station namely
Sanjay S. Khedekar, P.S.I. Mr. Raghunath Khedekar, Head Constable
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and Sayaji B. Thombre, Police Naik came to the residence of Altaf
Kadir Shaikh and picked him. They carried him to the Ghatkopar
Police Station. He was detained at detection room of Ghatkopar
Police Station. Subsequently, at about 09.:00 a.m. Shri. Zendekar,
Senior Police Inspector Ghatkopar Police Station while on routine
round in the Police Station noticed Altaf Kadir Shaikh sleeping in
the detection room. When he tried to wake him up, there was no
response. Altaf Kadir Shaikh was immediately removed to
Rajawadi Hospital where he was declared dead before admission.
Inquest of the body of deceased was conducted by Ms. V. V. Rane,
Resident Nayab Tahsildar, Kurla-Mulund which revealed no
external injuries on his body. The postmortem examination of his
body was conducted by the panel of Doctors of Department of
Forensic Medicine, Grant Medical college and Sir J.J. Hospital
Mumbai. The postmortem report given by the five Doctors shows
eight external and two internal injuries.
7. The CBI conducted investigation. Statements of witnesses
were recorded. Charge-sheet was filed before the Court of learned
Additional Chief Metropolitan Magistrate only for the offences
punishable under Section 120-B, 323 and 342 of IPC. The learned
Magistrate took cognizance of charge-sheet on 11 th March, 2013.
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Charges were framed under Section 120-B, 323 and 342 of IPC
against the accused. The Criminal Writ Petition No.2613 of 2009
was heard for considering prayer for compensation and vide order
dated 19th June, 2014, it was directed that trial Court to dispose of
the trial within one year and also clarified that the trial court would
be entitled to consider independently the question of
compensation. The charge-sheet filed by CBI indicate that, on 11 th
September, 2009 the Respondent Nos. 2 to 4 entered into criminal
conspiracy with each other, the object of which was for voluntarily
causing hurt and wrongful confinement of Altaf Kadir Shaikh. In
pursuance of said criminal conspiracy, on 11th September, 2009, the
Accused visited residence of Altaf and assaulted him. He was
dragged to auto rickshaw. Assault at the hands of Accused resulted
into several injuries to him. He was taken to Police Station and
confined in enclosure of detection room. The Police did not make
any entry in the station diary of Ghatkopar Police Station nor
recorded arrest Panchanama. On 11th September, 2009 at 9:00
hours Shri. Zendekar, Senior Police Inspector of Ghatkopar Police
Station directed Accused No.2 to wake up Altaf Shaikh. When
Accused No.2 tried to wake him up, he did not respond. Altaf
Shaikh was taken to Rajawadi Hospital where he was declared
brought dead by Doctor at about 9:46 am. Inquest proceedings of
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deceased Altaf were conducted at Rajawadi Hospital by Accused
No.4 from 3:00 pm to 3:45 pm on 11th September, 2009 which
revealed no fresh external injury, though postmortem report
mentions eight external injuries on body of deceased. During
investigation exhibits such as CD's of videography and photographs
of autopsy, inquest report, histopathology report, neuropathology
report etc. were sent to Department of Forensic Medicine and
Toxicology, All Indian Institute of Medical Sciences, New Delhi. The
three Doctors gave opinion that, injuries mentioned in postmortem
report of the deceased are linear abrasions, abrasion and
contusions. The abrasions are varying from 0.2 x 0.2 cm to 2 x 0.5
cm and two contusions are of the size of 4 x 3 cm and 2 x 1 cm.
Such small injuries are likely to be missed on examination by a
non-medical person particularly in an uncleaned dead body.
However, Medical Officer may observe them on detailed
examination at the time of postmortem examination. The injuries
are likely to be better appreciated on proper washing/cleaning of
dead body. Smt. Vandana Rane was name as Accused in FIR.
However, in view of the opinion of Doctors of AIIMS, New Delhi,
she is not being prosecuted/sent up for trial as there is no sufficient
evidence or reasonable ground of suspicion to justify the
forwarding of her to the Court. Smt. Vandana Rane may be
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discharged. After postmortem, brain and viscera of the deceased
Altaf Kadir Shaikh were sent for neuropathological,
histopathological and chemical examination/analysis at Sir J.J.
Hospital, Mumbai and F.S.L. Kalina, Mumbai. Based on above
reports, the Doctors, who conducted postmortem issued final cause
of death of Altaf Shaikh as 'Death due to Acute Alprazolam and
Ethyl Alcohol Toxicity with contusion of scalp with sub-Arachnoid
Heamorrhage with pneumonia associated lesion tatty liver.' The
opinion of Doctors of AIIMS, New Delhi was obtained about final
cause of death on 19th July, 2010 that cause of death could be
respiratory failure due to combined additive effect of toxicity of
Alprazolam and Ethyl Alcohol and Lung Pneumonia. The above
facts disclose commission of offences of criminal conspiracy
punishable under Section 120-B of IPC, voluntarily causing hurt
punishable under Section 323 of IPC and causing wrongful
confinement punishable under Section 342 of IPC by Accused Nos.
1 to 3 (Respondent Nos. 2 to 4). The offence under Section 302,
201 and 330 of IPC are not made out against the Accused in the
absence of legal evidence. Sanction under Section 197 of Cr.P.C.
has been obtained for prosecution of Accused.
8. The complainant filed protest petition on 16 th September,
2013 requesting the Court to commit the case to the Sessions Court
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for trial under Section 120-B, 302, 323, 342 and 330 of IPC. The
learned Additional Chief Metropolitan Magistrate, 19th Court,
Esplanade, Mumbai vide order dated 3rd November, 2014 allowed
the protest petition. The case was committed to Human Rights
Court i.e. Court of Sessions Mumbai specified under Section 30 of
the Protection of Human Rights Act, 1993 vide Government
Notification No.CRC.102K/(117)-IX dated 30th May, 2001, for trial
of offences under Sections 302, 323, 330 and 342 r/w 34 of IPC.
The Accused were directed to appear before the Human Rights
Court. Pursuant to the said order the case was committed to the
Court of Sessions and it was assigned to the Special Judge, CBI.
9. The Respondent Nos. 2 to 4 challenged the Order dated 3rd
November, 2014 by preferring Criminal Revision Application
No.378 of 2015. As the case was already committed to the Court of
Sessions. The revision application was disposed off vide order
dated 11th March, 2015 with liberty to Respondent Nos. 2 to 4 to
point out their grievances regarding the subject matter of revision
to the Sessions Court where there case is pending.
10. The learned Special Judge heard the parties on the point
of framing of charge. Vide order dated 3rd January, 2018, the
learned Special Judge (CBI), Sessions Court for greater Bombay
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remanded the case back to the Court of learned Additional Chief
Metropolitan Magistrate, 19th Court, Esplanade, Mumbai for trial of
the offences punishable under Sections 120-B r/w 323, 342 of IPC.
The Accused were directed to appear before the Court of learned
Magistrate.
11. Learned Advocate for the Petitioner Dr. Choudhary
submitted as under :-
i. The impugned order dated 3rd January, 2018 is
contrary to law and evidence on record.
ii. The conduct of Respondent Nos. 2 to 4 was suspicious
right from inception. The inquest Panchanama was fabricated
by suppressing injuries on the person of the deceased
iii. The learned Magistrate has passed the order dated
3rd November, 2014 by analyzing the documents on record and
opined that offence under Sections 302, 323 and 342 of IPC
are made out.
iv. The offence under Sections 302, 323, 330 and 342 r/w
34 of IPC are made out against the Accused which are out of
violation of Human Rights.
v. The Apex Court had directed registration of FIR
against the Accused regarding death of Altaf Kadir Shaikh.
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The FIR was then registered on 27 th November, 2009 under
Sections 302, 201 and 330 of IPC. Charge-sheet was filed.
However, the CBI had erroneously dropped the charge under
Section 302 and 330 of IPC. There is sufficient material to file
charge-sheet for said offences.
vi. Human Rights Courts were setup by notification issued
by Law and Judiciary Department, Mantralaya Mumbai vide
notification dated 30th May, 2001 with a view to provide better
protection of human rights and for matters connected there
with and incidental thereto and so that the offences arsing out
of violation of human rights are tried expeditiously. Custodial
deaths have been long considered as a grave infraction of
human rights.
vii. Section 2(d) defines human rights as the rights
relating to life, liberty, equality and dignity of the individual
guaranteed by the Constitution or embodied in the
international covenants and enforceable by Courts in India.
Section 30 of the Protection of Human Rights Act provides
that for the purpose of providing speedy trial of the offences
arising out of violation of human rights, the State Government
with the concurrence of the Hon'ble Chief Justice of the High
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Court by notification specify for each district a Court of
Sessions to be Human Rights Courts to try the offences.
viii. The Special Court failed to comprehend that any form
of torture or cruel inhuman or degrading treatment whether it
occurs during investigation or otherwise would amount to
violation of fundamental right and liberty as envisaged under
Article 21 of the Constitution of India.
ix. The CBI had submitted a charge-sheet under Sections
323 and 342 of IPC against the Accused for commission of
offences of inflicting cruel and inhuman treatment upon the
deceased and forcing him to wrongful confinement without
following due process of law.
x. The deceased was taken to Ghatkopar Police Station by
the Police without showing any lawful arrest, preparing arrest
memo or making any entry about his arrest in the lockup
registered or station diary and wrongfully confined him in the
detention room of the Police Station where the deceased died
on the same morning.
xi. Learned Special Judge has miserably failed to
appreciate that the facts on record disclosed prima facie
material to frame charges for commission of offences under
Section 302 and 330 of IPC.
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xii. The postmortem report discloses eight external injuries
and two internal injuries leading to haemorrhage which are
grave in nature and capable of causing death of the deceased.
xiii. Learned Special Judge has heavily relied upon the
report of AIIMS, Delhi dated 19 th July, 2010 and arrived at the
conclusion that the only offences which are made out against
the Accused are under Section 323, 342 r/w 120-B of IPC.
The Court had ignored the postmortem report and the final
report regarding the cause of death of the deceased issued by
the committee of J.J. Hospital. The Court has also brushed
aside the statements of Medical Officers which indicate that
the death of deceased could be caused by the injuries suffered
by him.
xiv. In the event of conflicting medical opinion regarding
cause of death primacy must be give to the medical witness
who had an opportunity to examine the deceased over the
reports which were received after a period of one year from
the date of incident of death given by the Medical Officers
who had no opportunity of examining the dead body.
xv. The postmortem report given by the Doctors who
examined the dead body does not reflect the presence of any
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external toxic elements like. Alprazolam or Ethyl Alcohol in
the body of the deceased.
xvi. The crime is of serious nature. The victim was
tortured while he was in custody of Accused. He was
subjected to assault. There is violation of human rights. The
opinion formed by the Sessions Court was illogical. Prima
facie case was made out to frame charge under Sections 120-
B, 302 and 330 of IPC. At the stage of framing of charge the
Court is not required to conduct roving inquiry. The evidence
on record was sufficient to prima facie form an opinion that
the death of deceased was caused by the Accused while he is
in custody.
xvii. There is no necessity of sanction under Section 197 of
Cr.P.C. in this case. The victim was assaulted by Police, which
resulted into his death, such act cannot be said to be
committed in discharge of duty.
xviii. Section 216(5) of the Cr.P.C. provides that, if the
offence stated in the altered or added charge is one for the
prosecution of which previous sanction is necessary, the case
shall not be proceeded with until such sanction is obtained,
unless sanction has been already obtained for a prosecution on
the same fact as those on which the altered or added charge is
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founded.
xix. Although the charge was framed by the Court of
learned Magistrate, the said Court was not precluded at
subsequent stage to commit the case to the Court of Sessions
when it was noticed that the offence triable by the Sessions
Court is made out.
xx. The learned Sessions Judge could not have ignored the
opinion of Sir J.J. Hospital, Mumbai regarding cause of death.
Assuming that, opinion given by AIIMS Hospital, Delhi is
contrary, at this stage the Court could not have brushed aside
the opinion of Doctors, who conducted postmortem.
12. Learned Advocate for the Petitioner has relied upon the
following decisions :-
i. D.K. Basu V/s. State of West Bengal and Ors., (2015) 8
SCC 744.
ii. Paramvir Singh Saini V/s. Baljit Singh, (2021) 1 SCC
184.
iii. Rasiklal M. Gangani V/s. Govt. of Goa and Ors., 2004
BOM LR 626.
iv. R.S. Mishra V/s. State of Orissa and Ors., (2011) 2
SCC 689.
v. Jagdish Ram V/s. State of Rajasthan and Anr., (2004)
4 SCC 432.
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vi. M/s. India Carat Pvt. Ltd. V/s. State of Karnataka and
Anr., (1989) 2 SCC 132.
vii. Nupur Talwar V/s. Central Bureau of Investigation,
Delhi and Anr., (2012) 2 SCC 188.
viii. State of Bihar V/s. Ramesh Singh, AIR 1977 SC 2018.
ix. State of M.P. V/s. S.B Johari, AIR 2000 SC 665.
x. Eshwaraiah and Anr. V/s. State of Karnataka, (1994) 2
SCC 677.
xi. Tanviben Pankajkumar Divetia V/s. State of Gujrat,
(1997) 7 SCC 156.
xii. Nasimbanoo widow of Allanoorkhan V/s. State of
Maharashtra, 2011 ALL MR (Cri.) 3875.
xiii. Ranjan and Others V/s. State, Hon'ble Supreme Court
Judgment dated 1st April, 2008 in Criminal Appeal No.579 of
2008.
xiv. State of Andhra Pradesh V/s. Thakkidiram Reddy, AIR
1998 SC 2702.
xv. P. P. Unnikrishnan V/s. Puttiyottil, (2000) 8 SCC 131.
xvi. S. P. Vaithianathan V/s. K. Shanmuganathan (1994) 4
SCC 569.
xvii. Choudhury Parveen Sultana V/s. State of W.B., (2009)
3 SCC 398.
xviii. Devinder Singh and Ors. V/s. State of Punjab, (2016)
12 SCC 87.
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13. Learned Advocate for the Respondent Nos. 2 to 4
submitted that the expert opinion received about cause of death
from AIIMS, Delhi completely rules out the allegations of custodial
death. There is sufficient material on record to indicate that, the
deceased has consumed intoxicants which has caused his death. For
the alleged assault witnessed by the complainant and other
witnesses Section 323 of IPC has been invoked against the
Respondents. To constitute the offence under Section 302 of IPC
there has to be material before the Court. The CBI has conducted
investigation and filed charge-sheet for the offence under Section
323 and 342 of IPC. On the basis of inferences the accused cannot
be prosecuted for grave charge. The allegations of assault causing
death of the victim are false. The deceased was externee. He had
committed breach of externment order. He was suspected to be
involved in fresh crimes. He was required to be interrogated. He
was found to be under the influence of intoxicants. The first
informant has suppressed the vital facts. There is strong evidence
to indicate that he had consumed Alphrazolam tablets. He was
taken to Police Station for interrogation. He was found dead and
thereafter taken to Hospital immediately. ADR was registered.
Inquest Panchanama was recorded. Statements of mother of the
deceased and his brother were recorded. They did not made
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grievance about the assault by Police. ADR inquiry was handed
over to DCB, CID. CBI had investigated the case and did not find
any evidence to constitute offence under Section 302, 201 and 330
of IPC. The statements of witnesses were recorded. The panel of
five Doctors of J.J. Hospital who conducted the postmortem has
given certificate of final cause of death after examining several
reports i.e. Viscera, Tissues, Penial Web, Brain, Blood, CA
histopathology, seminal stain examination, neuro-path examination
and the opinion was mentioned as acute Alprazolam and ethyl
alcohol toxicity with contusion of scalp with Sub-Arachnoid
Heamorrhage with pneumonia associated lesion fatty liver. Since,
the final cause of death given by the panel of Doctors shows that
the deceased has died due to multiple causes, the CBI had decided
to seek clarity on the actual cause which has resulted into death of
the deceased. Vide letter dated 19th February, 2010, CBI submitted
all documents, reports, video CD etc. to the department of forensic
medicine and toxicology, AIIMS, Delhi for their expert opinion.
Vide report dated 19th July, 2010 submitted by AIIMS, Delhi it was
opined that cause of Sub-Arachnoid Heamorrhage could be trauma,
Intoxication, asphyxia and spontaneous (natural). In 85 % of
spontaneous SAH the cause is rupture of cerebral aneurysm. Sub-
Arachnoid Heamorrhage can also be seen in case of alchoholic
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intoxication. It can cause symptoms that may include headache,
decreased level of consciousness and hemiparesis. External injury
can cause sub-arachnoid heamorrhage and can result in death of
person. In the present case the finding of sub-arachoid
heamorrhage are minimal and unlikely to cause death.
Considering the findings as mention in postmortem report, FSL
reports, histopathology report, photographs and on examination of
video CD of inquest and postmortem examination the Doctores
were of the opinion that the cause of death in this case could be
respiratory failure due to combined additive effect of toxicity of
Alprazolam and ethyl alcohol and lung pneumonia. In the light of
the aforesaid opinion the Respondents cannot be charged for the
offences under Section 302 and 330 of IPC. After the filing of
charge-sheet by CBI the Court of learned Magistrate had framed
charges under Section 323, 342 and 120-B of IPC. Thereafter, the
complainant filed a protest petition before the learned Magistrate
with a prayer to commit the the case to the Court of Sessions for
trial under Section 120-B, 302, 323, 342 and 330 of IPC. The
protest petition was opposed by the Respondents by filing reply.
Without appreciating the material brought on record by
Respondent No.5, the learned Magistrate allowed the protest
petition and committed the case to Human Rights Court. After
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framing of charges by the Court of learned Magistrate there was no
reason for the said Court to allow the protest petition and commit
the case to the Court of Sessions. The learned Sessions Judge has
assigned reasons of remanding the case back to the trial Court with
an observation that the offences under Section 302 and 330 of IPC
are not made out. Without cogent evidence the Accused cannot be
subjected to trial for serious offences. Sanction was granted only
for offences under Sections 120-B, 323 and 342 of IPC. The
deceased was involved in several cases. In three cases he was
convicted and other cases are pending for trial. He was externed
from several areas. During the operation of externment order he
had illegally entered Mumbai by violating the said order. The
information was received that he was involved in the case of
robbery and in order to make inquiry the deceased was picked up
by the Police. Chage-sheet was not filed for violation of Human
rights. Hence, the petition may be dismissed.
14. Learned Advocate Mr. Venegavkar appearing Respondent
No.5 submitted that the charge-sheet filed by CBI makes out the
offence under Sections 120-B, 323 and 342 of IPC. The medical
opinion collected during the investigation from AIIMS, Delhi rules
out the possibility of death of victim caused by the Respondents.
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Final opinion regarding cause of death by Doctors at J.J. Hospital
also refers to presence of intoxicants as cause of death. Hence, on
completing investigation charge-sheet was filed for the aforesaid
offences. Sanction was granted by Government under Section 197
of Cr.P.C. for the said offences. The charges under Sections 302 and
330 were dropped. The learned Sessions Judge has rightly
remanded case the back to the first Court for trial of Respondents
for aforesaid offences. There is no reason to set aside the order
passed by the Special Court / Sessions Court.
15. In the case of D.K. Basu V/s. State of West Bengal and Ors.
(Supra), it is observed that Section 30 of Protection of Human
Rights Act, 1993 provides that, the State Government shall specify
with the concurrence of the Hon'ble Chief Justice of the High
Court, for each district a Court of Sessions to be a Human Rights
Court so that the offences arising out of violations of Human Rights
are tried and disposed of speedily. Section 30 provides speedy trial
of the offences arising out of violation of Human Rights. In the
case of Paramvir Singh Saini V/s. Baljit Singh (Supra), it is
observed that whenever there is information of force being used at
Police Stations resulting in serious injury and or custodial deaths, it
is necessary that person be free to complaint for redressal of the
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same. Such complaints may not only be made to the State Human
Rights Commission, which is then to utilize its powers more
particularly under Section 17 and 18 of the Protection of Human
Rights Act, 1993 for redressal of such complaints but also to
Human Rights Courts which must then be set up in each district of
State/Union Territory under Section 30 of the Act. In the case of
Rasiklal M. Gangani V/s. Govt. of Goa and Ors. (Supra) it was
observed that, since the Human Rights Act has not specified any
special provision relating to the cognizance and the trial of the
offence, the provisions of the Code of Criminal Procedure would
govern the trial of cases before the Human Rights Court. The
Sessions Court though designated as a Human Rights Court
continues to be a Court of Sessions and therefore unless it is
otherwise stated in the Act the Human Rights Court would not be a
Court of original jurisdiction. It cannot directly take cognizance of a
complaint filed before it. A reference may usefully be made to
Section 193 of the Code of Criminal Procedure, which provides that
except as otherwise expressly provided by this Code or by any other
Code or by any other law for the time being in force, no Court of
Sessions shall take cognizance of any offence as a Court of original
Jurisdiction unless the case has been committed to it by a
Magistrate under this Code.
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16. The Petitioner's son Altaf Kadir Shaikh died on 11 th
September, 2009. It is not disputed that on the date of incident the
deceased was at home and that the Policemen had visited his
house. It is also not disputed that the deceased was taken into
custody by the Police who visited the house of the Petitioner and
was purportedly taken to the Police Station for inquiry. On the
same day he was found dead. It is not disputed that the deceased
died while in custody of Police. The question involved in this case is
whether the deceased was subjected to torture / assault by
Policemen which has resulted in his death. There cannot be debate
that the death of the suspect / Accused while in custody of the
Police on account of torture and assault by Police would amount to
murder. The complaint was made by the Petitioner alleging that
the deceased was tortured by Police which has resulted in death.
Cognizance of complaint was not taken by the Police. The
Petitioner who is mother of deceased was constrained to approach
this Court by preferring Criminal Writ Petition No.2613 of 2009.
This Court had made critical observations about the conduct of
Police, preparation of inquest, finding of injuries on the body of the
deceased and the cause of death. The Division Bench of this Court
directed that the case be registered against the concerned Police
Officials and persons who conducted inquest for the offences under
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Section 302, 201 and 330 of IPC. The investigation was transferred
to CBI. The Apex Court directed that FIR be registered regarding
death of Altaf Kadir Shaikh and matter be investigated by CBI
without being influenced by any of the observations made by the
High Court. FIR was registered by CBI on 27th November, 2009
under Section 302, 201 and 330 of IPC. The CBI filed a charge-
sheet under Section 120-B, 323 and 342 of IPC. Thus, the CBI had
indicted Respondent Nos. 2 to 4 to the extent of offence of
conspiracy, assault and wrongful restraint. The Court of learned
Magistrate had thereafter framed the charge. Subsequently protest
petition was filed by the Petitioner and at that point of time the
learned Additional Chief Metropolitan Magistrate, 19th Court,
Esplanade, Mumbai vide order dated 3rd November, 2014 allowed
the protest petition and committed the case to the Human Rights
Court i.e. Court of Sessions for trial of offences under Sections 302,
323, 330 and 342 r/w 34 of IPC. It is pertinent to note that the
learned Magistrate has taken efforts to peruse the documents on
record and after analyzing them proceeded to pass the aforesaid
order. It was observed that the Respondent Nos. 2 to 4 are Police
Sub-Inspector, Police Head Constable and Police Naik attached to
Ghatkopar Police Station. They visited the house of deceased on
11th November, 2009 and it is the prosecution case that the
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deceased was assaulted and dragged into auto rickshaw and
wrongfully detained in detention room of Ghatkopar Police Station.
He was found dead in the enclosure of detection room. He was
shifted to Rajawadi Hospital. He was declared dead. The Court
then referred to the external injuries and internal injuries suffered
by deceased and the provisional opinion regarding cause of death
given by the Doctors at J.J. Hospital and final opinion given by the
Doctors who conducted the postmortem. The learned Magistrate
also made reference to the opinion of All Indian Medical Institute
of Medical Science, Delhi. Reference was also made to the
statements of witnesses recorded during the investigation. On
analyzing the factual matrix it was observed that, even after taking
cognizance of the offences against particular Accused at subsequent
stage without resorting to Section 319 of Cr.P.C., the Court has
power to direct additional Accused to face the trial and the said
analogy referred to the said decision could be applicable in the
present case. Reference was also made to Section 216 of Cr.P.C.
which empowers Court to alter or add any charge at any time
before the Judgment and observed that for exercising such powers
recording of evidence is not necessary. It was further observed that
the statement of family members of the deceased and neighbours
prima facie show that the Accused / Police Official while taking the
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deceased in their custody have mercilessly assaulted him and
dragged him in rickshaw and took him to Police Station where he
was illegally detained and found dead. The Court took into
consideration the report of Doctors at J.J. Hospital who conducted
the postmortem and their statements. The Court also referred to
reports of Doctors of AIIMS, Delhi and then observed that when
there are two contrary opinions of the teams of the Doctors, at the
stage of prima facie case the opinion of the Doctors must be given
predominance over the opinion given by the other Doctors who
have not conducted the postmortem. The Court is not competent
to decide as to whose opinion is correct and such question would
be decided only in the course of trial by the Competent Court.
Only the Competent Court has final voice of such question of facts
and the Court is required to find out prima facie case which means
possibility of death of deceased by assault. Considering the fact
that deceased died in the custody of the Accused, he had two
contusions resulting into sub-arachnoid heamorrhage which could
be the cause of death of the deceased, prima facie there is sufficient
material to show that the deceased died homicidal death which is
an offence punishable under Section 302 of IPC. It was also
observed that there is evidence to support the charge for an offence
under Section 330 of IPC. By assigning cogent reasons and with
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elaborate order the learned Magistrate allowed the protest petition
and committed the case to the Human Rights Court / Sessions
Court.
17. Although, while disposing of the revision application
preferred by respondent Nos. 2 to 4, challenging the order of
learned Additional Chief Metropolitan Magistrate by reserving
liberty to point out their grievances regarding the subject matter of
revision to the Sessions Court where the case is now pending, it has
to be noted that the Sessions Court was at the stage of framing of
charge and the impugned order indicate that both sides were heard
on the point of framing charge. The learned Sessions Judge vide
impugned order has observed that, CBI has filed a charge sheet and
in the charge-sheet there are no allegations for prosecution arising
out of violation of Human Rights. The charge-sheet is supported
with sanction order dated 30th December, 2010 as the Accused were
public servants. Sanction was granted to prosecute the Accused
under Section 120-B, 323 and 342 of IPC. Provisions of Section
197(2) is applicable to Police Officers as defined in Bombay Police
Act. In the instant case, the Government of Maharashtra has
granted sanction to prosecute the Accused for the offences under
Section 120-B, 323, 342 of IPC only. After presentation of charge-
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sheet the learned Magistrate had taken cognizance for offences
punishable under Sections 120-B, 323, 342 of IPC only. On perusal
of charge-sheet it appears that on 11th September, 2009 the
Respondent Nos. 2 to 4 while working in the Detection Department
of Ghatkopar Police Station entered into criminal conspiracy with
each other, the object of which was for voluntarily causing hurt and
wrongful confinement of Altaf Kadir Shaikh. In furtherance of
conspiracy the Accused visited the residence of deceased. He was
assaulted, picked up and dragged by them to the auto rickshaw.
The assault resulted in several injuries to him. He was taken to
Ghatkopar Police Station where he was confined by them at the
detection room of the Police Station. The Police did not make any
entry in the station diary in respect of bringing Altaf Kadir Shaikh
to the Police Station. The Respondent No.2 did not make any
arrest Panchanama in this regard. On 11th September, 2009 in the
morning at 9 hours while Senior P.I. was having round of Police
Station. He visited detection room and found that the deceased
was not responding. He was taken to hospital where he was
declared dead. Inquest was conducted at Rajawadi Hospital by
Nayab Tahsildar which revealed no fresh external injury though the
postmortem in respect deceased mentions eight external injuries on
the body of the deceased. Exhibits such as C.Ds., videography,
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photographs of the autopsy, Inquest report, Histopathology report
and Neuropathology report etc. were sent to Department of
Forensic Medicine and Toxicology, AIIMS, Delhi by CBI. The
opinion was received that the cause of death in this case could be
respiratory failure due to combine additive effect of toxicity of
Alphrazolam and Ethyl Alcohol and lung pneumonia. Considering
the said report the learned Special Judge had given a finding that
the charge-sheet discloses the offences punishable under Section
120-B, 323 and 342 of IPC and offence under Sections 302, 201
and 330 of IPC are not made out. The case was remanded back to
the Court of learned Magistrate.
18. It is relevant to note that the charge-sheet filed by CBI
indicts the Respondents on the charges of conspiracy, assault and
wrongful confinement. There was no station diary entry about
victim being brought for enquiry and there was no arrest
panchnama. The incident of picking up victim from his residence,
assault and dragging him towards Auto-rickshaw is supported by
statements of witnesses.
19. The postmortem report referred to external and internal
injuries which are as follows :-
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External Injuries :
i. A contusion present on left side of back over lumber
region of size 4x3 cm, red colour, subcut. Deep on dissection
ii. A contusion present on right tibial tuberosity of size 2 cm
x1 cm, red colour, subcutaneous deep.
iii. Four Abrasions of size 1 cm x 0.5 cm, 0.2 x 02 cm, 0.2 x
08 cm, 2 cm x 0.5 cm present on shin of right leg, red colour.
iv. Linear abrasion of size 4 cm x 0.2 cm present on shin of
right let at lower 1/3rd anteriorly, red colour.
v. Four abrasion of size 0.5 cm x 0.5 cm, each present on just
above and lateral aspect of left knee, red colour.
vi. Linear abrasion of size 2cm x 0.5 cm present on left knee,
red colour.
vii. Old healed abrasion of size 0.5 cm x 0.5 cm on left index
finger at its terminal phalynx.
viii. Four linear abrasions of size 0.5 cm x 0.2 cm each,
irregular present on left tibial shin region, middle 1/3rd part
of lower limb below knee, red colour.
Internal Examination :
Head:
(a) Scalp Findings:
i. A contusion under scalp at high Parietal Region of 6 cm x
5 cm in size, periosteal deep, dark red colour.
ii. A contusion present on left tempero-occipital region at
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base of 4 cm x 4 cm, periosteal deep, dark red colour.
(b) Skull:
Skull is intact, and no E/o fracture seen.
(c) Meninges, meningeal spaces & Cerebra/vessels :
(Hemorrhage & its location, abnormal smell etc.)
Meninges are congested.
i. Sub-Arachnoid Heamorrhage seen on left frontal lobe at
inferior surface of size 4 cm x 3 cm, dark red colour.
ii. Sub-Arachnoid Heamorrhage seen on right parietal region,
diffuse of size 3 cm x 2 cm dark red colour.
20. The Doctors at Sir J.J. Hosptial, who conducted the
postmortem gave provisional opinion regarding cause of death as
'Evidence of contusion of scalp with Sub-Arachnoid Haemorrhage.'
The final opinion was reserved pending Histopathology, Chemical
Analysis and accessory Examination. The Doctors at Sir J.J.
Hospital gave final opinion on 6th November, 2009 as 'Death due to
acute Alphrazolam and ethyl alcohol toxicity with contusion of
scalp with sub-arachnoid haemorrage with pneumonia associated
lesion fatty liver.'
21. The CBI called for report from AIIMS, Delhi by forwarding
documents/reports. Thus, report was submitted by authority, who
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were not party to postmortem. Vide report dated 19 th July 2010,
apart from other opinion with regards to questions put-forth by CBI
for opinion, the prime opinion given by AIIMS, Delhi regarding
cause of death is "considering the findings as mentioned in
postmortem report, FSL Reports, Histopathology Report,
Photographs and on examination of video CD of Inquest and
Postmortem Examination, cause of death in this case could be
respiratory failure due to combined additive effect of toxicity of
Alprazolam and Ethyl Alcohol and lung pneumonia". It is pertinent
to note that while postmortem report was recorded, there was no
semblance of either consumption of Alprazolam or Ethyl Alcohol.
The cause of death referred to contusion of scalp with sub-
arachnoid haemorrage. However, final opinion of team of J.J.
Hospital indicated death due to acute Alprazolam and Ethyl
Alcohol Toxicity with contusion of scalp with sub-arachnoid
haemorrage with pneumonia associated lesion fatty liver. This
opinion indeed include contusion of scalp with sub-arachnoid
haemorrage as one of the cause of death. The opinion of AIIMS,
Delhi is mostly extraneous to postmortem report. Thus, there are
two contradictory opinions. It is pertinent to note that, postmortem
was conducted by the Doctors attached to J.J. Hospital. The CBI
had sought opinion from the Medical Officers of AIIMS, Delhi who
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were not party for conducting the postmortem. There opinion was
based on the documents forwarded to them.
22. It is a settled law that if on the basis of material on record
Court could come to the conclusion that commission of offence is
probable consequence, a case for framing of charge exists. If the
Court were to think that the Accused might have committed the
offence it can frame the charge, though for conviction the
conclusion is required to be that the Accused has committed the
offence. At the stage of framing of charge probative value of
material on record cannot be gone into, the material brought on
record by the prosecution has be accepted as true at that stage. At
prima facie stage the strong suspicion that the Accused may have
committed the grave offence would be sufficient to apply the grave
offence against the Accused. The statements of family members of
the deceased and neighbours were recorded during the
investigation, the said statements prima facie shows that
Respondents/Accused while taking the deceased in their custody
assaulted him and dragged him to auto rickshaw and took him to
the Police Station where he was detained. The Doctors at J.J.
hospital who conducted postmortem had advantage of giving an
opinion as they have observed injuries including two fatal scalp
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injuries i.e. contusion under scalp at high parietal region of 6 cm x
5 cm in size. Periosteal deep, dark colour and contusion on left
tempero-occipital region at base of 4 cm x 4 cm, periosteal deep,
dark red colour. The Doctors, on internal examination found sub-
arachnoid heamorrhage at left frontal lobe at interior surface and
on right parietal region. This was not the stage to appreciate the
evidence and therefore the learned Sessions Judge has failed to
notice this fact and committed an error while passing the impugned
order.
23. I have perused the statements of Dr. Bhalchandra
Gopinath Chikhalkar, Dr. Gajanan Sheshrao Chavan, Dr. Ashutosh
Harshwardhan Meshram and Dr. Anand Parshuram Raymane their
version depicts the death of deceased Altaf Shaikh might have
occurred due to individual reason or on account of collective
reasons mentioned in final opinion. Their statements indicate that
the death is due to assault resulting into sub-arachnoid
heamorrhage or may be due to other reasons. The Doctors have
also stated two contusion injuries are sufficient to lead death of the
deceased and those injuries could be due to assault by hard and
blunt object. The case of contusion of scalp with sub-arachnoid
heamorrhage is more likely to cause death. More probable reason
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for the death of deceased is contusion injuries to the scalp resulting
into sub-arachnoid heamorrhage thereby it is homicidal death. On
the other hand the team of three Doctors gave their final opinion
that cause of death in this case is could be respiratory failure due
combine additive effect of toxicity of Alprazolam and Ethyl Alcohol
and lung pneumonia and not sub-arachnoid heamorrhage. Even if
there is debate in respect to cause of death on the basis of the
opinion of the Doctors of J.J. Hospital the Accused cannot be
absolved at this stage from the charge under Section 302 of IPC.
24. The postmortem of the victim was conducted by panel of
five doctors attached to J.J. Hospital namely Dr. Balchandra
Gopinath Chikhalkar, Dr. Gajanan Sheshrao Chavan, Dr. Ashutosh
Harshwardhan Meshram, Dr. Anand Parshuram Rajmane and Dr. M.
E. Bansude. During the course of investigation, their statements are
recorded. Dr. Balchandra Chikhalkar in his statement dated 20 th
January 2010 stated that, he has been working in Sir J.J. Hospital,
Mumbai for the past twelve years. He has conducted around 4,000
postmortems. According to him on 11 th September 2009, the dean
of Grant Medical Collage received a letter from Senior Police
Inspector, Ghatkopar Police Station requesting them to form a
panel of doctors to conduct postmortem of Altaf Kadir Shaikh. The
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panel comprised of him, Dr. G. S. Chavan, Dr. A.H. Meshram, Dr.
M.E. Bansude and Dr. A.P. Raymane, conducted postmortem of
Altaf Shaikh. He has referred to external and internal injuries on
the body of deceased Altaf Shaikh, which were also reflected in
postmortem report. He stated that, no specific odour being
perceived him while examining the stomach. Generally on
examination of stomach of alcoholic persons under intoxication,
they perceived odour of alcohol which was absent in the said case.
As per inquest conducted by Naib-Tahsildar, only one old external
injury was found on left knee of Altaf Shaikh. Whereas in the
postmortem report Eight visible external injuries were noted. The
external injuries mentioned in the postmortem report were visible
with the neked eye and it did not not require washing to be seen.
Secretion was seen coming out of nose of deceased due to severe
pulmonary oedema or due to depression of respiratory centers at
the time of death. It's cause may be due to respiratory insufficiency
or depression. Bleeding was observed from left ear pinna due to
the punctured part of the pinna of the left ear. It exhibit signs of
external injury caused from hard and blunt object. Contusion
present on the left side of back over lumbar region of 4cm X 3cm
has been caused due to the impact of hard and blunt object like
wooden block or heeled shoes. Contusion present on the right
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tibial tuberosity of size 2cm X 1cm has been caused due to the
impact of hard and blunt object like wooden stick. Four abrasions
found on shin of right leg are caused due to the frictional dragging
force over the rough surface. The other abrasions found on the
body are caused due to the frictional dragging force over the rough
surface. The contusion found under scalp had high parietal region
of 6cm X 5cm in size periosteal deep occurs due to the impact with
hard and blunt object. This injury alongwith associated internal
injuries of brain can lead to death of person . The contusion found
under the scalp at left tempero-occipital region are based of 4cm X
4cm in size periosteal deep occurs due to the impact with hard and
blunt object. This injury along with associated internal injuries of
brain can lead to death of person. Meninges can be secondary to
the impact on head or it can occur due to intoxication. The sub-
arachnoid haemorrhage is caused due to the secondary effect of the
trauma (impact on the head with hard and blunt object). It will
interfere with the functioning of vital centres of nervous system. In
some cases sub-arachnoid haemmorrhage may occur due to
intoxication but its chances are very limited. Sub-Arachnoid
haemmorrhage associated with the contusions under the scalp
indicates association of external injury with it. It may lead to the
death of person. The contusion found under the scalp at high
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parietal region corresponds to sub-arachnoid haemmorrhage found
at the right parietal region whereas contusion found under the
scalp at left tempero-occipital region may lead to sub-arachnoid
haemmorrhage at the left frontal lobe at the inferior surface. The
final cause of death certificate is based on findings by the Forensic
Science Laboratory, Mumbai histopathology report and
neuropathology report as well as gross postmortem findings.
Contusion of scalp with sub-arachnoid haemmorrage due to
external injury were observed autopsy. All of them are individual
causes and are not linked to each other except contusion of scalp
with sub-arachuoid haemmorrage. Death would have occurred as a
result of the combination of all causes mentioned in the final death
certificate. However, individual causes may lead to death of a
person. Contusion of scalp with sub-arachnoid haemmorrage is
more likely to cause death. Dr. Gajanan Chavan in his statement
dated 19th January 2010 stated that, no specific odour was
perceived by him while examining stomach. It is suggestive of no
evidence of poisoning and consumption of alcohol. External
injuries were visible. Contusion on the right tibial tuberosity is due
to impact with hard and blunt object. Abrasions found on the body
due to dragging on the rough surface. Contusion found under
scalp at high perietal region periosteal deep is due to impact with
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hard and blunt object and it may lead to death of a person.
Contusion found under the scalp at left tempero-occipital region
periosteal deep due to impact with hard and blunt object and it
may lead to death of person. Sub-arachnoid haemorrhage found on
left frontal lobe at inferior surface and right parietal region of
deceased due to rupture of blood capillaries. It causes irritation of
the neurons. Intoxication may lead to sub-arachnoid haemorrhage
at terminal level. External injury to the head can also lead to sub-
arachnoid haemorhage. Sub-arachnoid haemorrhage can lead to
death of person. There are two components for death i.e. acute
Alpazolam and Ethly Alcohol Toxicity and the other being the
contusions of scalp caused due to external injury. Both these
conditions may cause sub-arachnoid Haemorrhage. These two
components are possible to cause death individually or collectively
of these two components, contusion of scalp with sub-arachnoid
haemorrhage is more likely to cause death. Dr. Ashutosh Meshram
in his statement dated 25th January 2010 has reiterated the version
of the aforesaid doctors. According to him contusion found under
the scalp at left tempero-occipital region is due to impact with hard
and blunt object and it will lead to death of person. Death of
deceased might have occurred due to individual reason or
collective reasons as mentioned in the certificate. Statement of Dr.
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Anand Rayamane is similar to the version of other medical officers.
Dr. Mahadev Bansude in his statement dated 27 th January 2010 has
given similar opinion. According to him contusion found on scalp
at high perietal region is due to the impact with hard and blunt
object and it can lead to death of person. Contusion found under
the scalp at left tempero occipital region due to the impact with
hard and blunt object and it can lead to death of person. Sub-
arachnoid heamorrhage can be caused due to hard and blunt object
on the head or due to acute intoxication. External injury can lead to
sub-arachnoid haemorrhage and cause death in person. The death
of deceased might have occurred either due to individual reason or
on account of collective reasons mentioned in the certificate.
25. On analysis of evidence before trial Court, prima facie
offences under Section 120-B, 302, 342, 330 of IPC is made out.
The case is triable by Court of Sessions.
26. The learned Sessions Judge has observed that sanction
was granted only for the offences for which the charge-sheet was
filed. Taking into consideration the nature of acts attributed to the
Respondents, it cannot be said that the accused had committed acts
in discharge of official duty. There is no requirement of sanction
under Section 197 of Cr.P.C. The act of public servant to assault the
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person in custody resulting into death cannot be said to be an act
committed during the course of discharge of official duty.
27. The offence under Section 302 of IPC is triable by Court of
Sessions. In pursuance to order dated 3rd November 2014 passed
by learned Additional Chief Metropolitan, case was assigned to
Special Judge (CBI), Sessions Court and proceedings are at the
stage of framing charge. The charge-sheet was filed for offences as
stated above. Section 323 of Cr.P.C. empowers the Court of
Magistrate to commit the case to Court of Sessions if it appears to
him at any stage of the proceedings that the case is one which
ought to be tried by Court of Sessions. On investigation charge-
sheet was filed before regular Court. The Sessions Court was
concerned with issue of framing of charge. The Sessions Court
before whom the case is pending shall proceed with the case after
framing the charge. While remanding the case back to Court of
learned Magistrate, the learned Special Judge has travelled beyond
scope of section 218 of Cr.P.C. Prima facie offences under Section
120-B, 302, 330 and 342 of IPC are made out for framing charge
against Respondent Nos. 2 to 4.
28. In the case of P. P. Unnikrishnan V/s. Puttiyottil (Supra), it
is held that if a Police Officer dealing with law and order duty uses
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force against unruly persons, either in his own defence or in
defence of others and exceeds such rights it may amount to an
offence. But such offence might fall within the amplitude of Section
197 of the Code as well as Section 64(3) of the Kerala Police Act,
but a Police Officer assaults a prisoner inside a lockup he cannot
claim such act to be connected with a discharge of his authority or
exercise of his duty unless he establishes that he did such act in his
defence or in defence of other or any property. If a Police Officer
wrongfully confines a person in the lockup beyond a period of 24
hours without the sanction of a Magistrate or order of a Court. It
would be an offence for which he cannot claim any protection in
the normal course, nor he can claim that such act was done in
exercise of his official duty. A policemen keeping a person in the
lockup for more than 24 hours without authority is not merely
abusing his duty but his acts would be outside the coutours of his
duty or his authority. In the case of S. P. Vaithianathan V/s. K.
Shanmuganathan (Supra), it was observed that before a
prosecution is terminated has barred by Section 53 of Tamilnadu
District Act, the Accused must show that on the allegations made in
the complaint it acts ex-facie appears that the Act complained of
was done under the provisions of the Act or under the provisions of
any other law for the time being in force where under powers are
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conferred on the Police. It is no part of duty under the Act, Code or
any other law conferring power on the Police to beat and torture
the suspect when he presented himself before the Police in
response to the summons. By no stretch of reasoning can it be said
that the action of Police torturing the suspect was in discharge of
any duty or function under the Act or under any other law. Only
since, the suspect was called through a summons issued under the
law the conduct of beating or torturing him on his appearance
cannot establish any nexus between the official Act of issuance of
summons and the action of Police on the appearance of the suspect.
In case of Choudhury Parveen Sultana V/s. State of W.B. (Supra), it
was observed that, all acts done by public servant in the purported
discharge of his official duties cannot as a matter of course be
brought under the protective umbrella of Section 197 of Cr.P.C. On
the other hand, there can be cases of misuse and or abuse of
powers vested in a public servant which can never be said to be
part of the official duties required to be performed by him. In the
case of Bhagwan Prasad Shriwastava V/s. N.P. Mishra, (1970) 2
SCC 56, it was observed that the underlying object of Section 197
of Cr.P.C. is to enable the authorities to scrutinize the allegations
made against a public servant to shield him/her against frivolous,
vexatious or false prosecution initiated with the main object of
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causing embarrassment and harassment to the said official.
However, if the authority vested in a public servant is misused for
doing things which are not otherwise permitted under the law, such
acts cannot claim the protection of Section 197 of Cr.P.C. and have
to be considered dehorse the duties which a public servant is
required to discharge or perform. Hence, in respect of prosecution
for such excesses or misuse of authority, no protection can be
demanded by the public servant concerned. In the case of Devinder
Singh and Ors. V/s. State of Punjab through CBI (Supra), the
question of whether in view of provisions content in Section 6 of
the Punjab Disturbed Areas Act, 1983 the prosecution or other legal
proceedings relating to Police Officers can be instituted without
prior sanction of the Central Government. The Appellants were the
Officers of Punjab Police. They were entrusted duties and
responsibilities of maintaining public order and peace. There was
sudden spurt in terrorist activities resulting in collapse of civil
administration. Civilians and man in uniform were killed. Four
persons were killed in encounter with the Police. The prosecution
alleged that they were killed in fake encounter. The Hon'ble
Supreme Court referred to several decisions on the issue of grant of
sanction to prosecute public servants and summarized the
principles emerging from the said decisions. It was observed that
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once act or omission has been found to have been committed by
public servant by discharging his duty it must be given liberal or
vide constructions so far its official nature is concerned. Public
servant is not entitled to indulge in criminal activities so that
Section 197 of Cr.P.C. has to be construed narrowly and restricted
manner. Even in facts of a case when public servant has exceeded
in his duty, if there is reasonable connection it will not deprive him
or protection under Section 197 of Cr.P.C. There cannot be a
universal rule to determine whether there is reasonable nexus
between the act done and official duty nor is it possible lay down
such rule. In case of assault made if intrinsically connected with a
related to performance of official duties, sanction would be
necessary under Section 197 of Cr.P.C. but such relation to duty
should not be pretended or a fanciful claim. The offence must be
directly or reasonably connected with official duty to require
sanction. It is no part of official duty to commit offence. In case
offence was incomplete without proving, the official act, ordinarily
the provisions of Section 197 of Cr.P.C. would apply. It is pertinent
to note that in the case before the Hon'ble Supreme Court, the
allegation as per the prosecution case was that it was a case of fake
encounter or death caused by torture whereas the defence of the
Accused person is that it was a case in discharge of official duty and
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deceased was involved in the terrorist activities and while
maintaining law and order the incident has taken place. The
incident was in the course of discharge of official duties. The Apex
Court while concluding the Judgment has observed that it would be
open to the Accused to adduce the evidence in defence and to
submit such other material on record indicating that the incident
had taken place in discharge their official duties. The trial Court
has prima facie to proceed on the basis of the prosecution version
and can redecide the question afresh in case from the evidence
adduced by the prosecution or by the Accused or in any other
manner it comes to the notice of the Court that there was
reasonable nexus of the of the incident is discharge of official
duties, the Court shall reexamine the question of sanction and take
decision in accordance with law.
29. In the present case, the case of the prosecution is that the
deceased was dragged from the house and assaulted by the
Respondents. There was no station diary entry about the custody of
the deceased. There was no arrest memo. The deceased was taken
to Police Station. He had suffered external and internal injuries.
30. In the case of R.S. Mishra V/s. State of Orissa and Ors.
(Supra), it was observed that the material in case diary revealed
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two distinct offences of the same nature, then it is appropriate to
frame charge for the more grievous offence or to frame charge for
both the offences distinctly and separately. When material on
record reveals a higher offence, it is expected that charge will be
framed for grievous offence which will not be diluted. In Jagdish
Ram V/s. State of Rajasthan and Anr. (Supra), it is held that,
notwithstanding the opinion of the Police, Magistrate is empowered
to take cognizance if the material on record mix out a case of the
said purpose. The investigation is exclusive domain of the Police.
The taking cognizance of offence is an area exclusively within the
domain of a Magistrate. At this stage the Magistrate has to be
satisfied whether there is sufficient ground for conviction. Whether
the evidence is adequate for supporting the conviction, can be
determined only at the trial and not at the stage of inquiry. In the
case of M/s. India Carat Pvt. Ltd. V/s. State of Karnataka and Anr.
(Supra), it was observed that upon receipt of Police report under
Section 173(2) a Magistrate is entitled to take cognizance of an
offence under Section 190(1)(b) of the Code. Even if the Police
report is to the effect that no case is made out against the Accused,
the Magistrate can take into account the statements of witnesses
examined by the Police during investigation and take cognizance of
the offence complained of and order the issue of process to the
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Accused. Section 190(1)(b) does not lay down that the Magistrate
can take cognizance of an offence only if the investigating officer
gives an opinion that the investigation has made a case against the
Accused. The Magistrate can ignore the conclusion arrived at by the
Investigating Officer and independently apply his mind to the facts
emerging from the investigation and take cognizance of the case. If
he thinks fit in exercise of his powers under Section 190(1)(b) and
direct the issue of process to the Accused. In the case of Nupur
Talwar V/s. Central Bureau of Investigation, Delhi and Anr.
(Supra), it is held that Section 190 of the code lays down the
conditions which are requisite for the initiation of criminal
proceedings. At this stage the Magistrate is required to exercise
sound judicial discretion and apply his mind to the facts and
material before him. In doing so, the Magistrate is not bound by the
opinion of the Investigating Officer and is competent to exercise his
discretion irrespective of the views by the Police in its report and
may prima facie find out whether an offence has been made out or
not. The correctness of the order whereby cognizance of the
offence has been taken by the Magistrate should be sparingly
interfered with, unless it is perverse and based on no material. The
Court should exercise utmost restraint and caution before
interfering with an order of taking cognizance by the Magistrate,
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otherwise the trial would be stalled. The Superior Court should
maintain this restraint to uphold or rule of law and sustained the
faith of the common man in the administration of justice. In the
case of State of Bihar V/s. Ramesh Singh (Supra), it is observed
that at the beginning and initial stage of the trial the truth, veracity
and effect of the evidence which the prosecution proposes to
adduce or not to be meticulously judged. Nor any weight is to be
attached to the probable defence of the Accused. It is not
obligatory for the judge at the stage of trial to consider in any
detail and weigh in a sensitive balance whether the facts, if proved,
would be incompatible with the innocence of the Accused or not.
The standard of test and Judgment which is to be finally applied
before recording a finding regarding the guilt or otherwise of the
Accused is not exactly to be applied at the stage of deciding the
matter under Sections 227 or 228 of the Code. At that stage the
Court is not to see whether there is sufficient ground for conviction
of the Accused or whether the trial is sure to end in his conviction.
From suspicion against the Accused, if the matter remains in the
region of suspicion, cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage if there is strong
suspicion which leads the Court to think that there is ground for
presuming that the Accused has committed an offence then it is not
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open to the Court to say that there is no sufficient ground for
proceeding against the Accused. In the case of State of M.P. V/s.
S.B Johari (Supra), it was held that the High Court had appreciated
and weighed the material on record for coming to the conclusion
that charge against the Accused could not have been framed. It is
settled law that at the stage of framing the charge, the Court has to
prima facie consider whether there is sufficient ground for
proceeding against the Accused. The Court is not required to
appreciate the evidence and arrive at the conclusion that the
material produced was sufficient or not for convicting the Accused.
31. In the case of Eshwaraiah and Anr. V/s. State of Karnataka
(Supra), it was observed that the opinion of autopsy surgeon who
conducted the postmortem examination is preferably and superior
to the opinion of a person who has not done so himself. Similar
view has been expressed in the case of Tanviben Pankajkumar
Divetia V/s. State of Gujrat (Supra). In the case of Nasimbanoo
widow of Allanoorkhan V/s. State of Maharashtra (Supra), it was
noted that opinion by Doctors who have not seen the corpse and
organs inside is an opinion and becomes a remote to the facts
sought to be commented. In the case of Ranjan and Others V/s.
State (Supra), the conviction for an offence under Section 302 of
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IPC was confirmed. On the facts that cause of death was head
injury resulting in sub-arachnoid heamorrhage. Similar view was
taken in State of Andhra Pradesh V/s. Thakkidiram Reddy (Supra).
32. In the light of the principles enunciated in several
decisions and factual matrix of this case, it will have to be held the
learned Sessions Judge/Special Judge has passed erroneous order
while dealing with issue of framing charge and remitted the case
back to the trial Court for prosecution of the Accused for offences
under Sections 120-B r/w 323, 342 of IPC. In exercise of the
powers under Article 227 of Constitution of India and inherent
powers under Section 482 of Code of Criminal Procedure, the
impugned order passed by the Special/Sessions Court is required to
be set aside.
33. Hence, I pass the following order;
ORDER
i. Criminal Writ Petition No.1954 of 2019 is allowed.
ii. The impugned order dated 3rd January, 2018 passed
below Exh-1 in Sessions Case No. 826 of 2014 by Special
Judge (CBI) City Civil and Sessions Court, Greater Bombay is
quashed and set aside.
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iii. The Special Judge (CBI)/ Sessions Court is directed to
frame charges against the Respondent Nos.2 to 4 in Sessions
Case No.826 of 2014 for offences under Sections 120-B r/w
302, 330 & 342 IPC and any other charges if made out and
proceed with the case expeditiously.
iv. It is clarified that, the observation made in this order
are only for adjudicating the issue involved in this petition and
the trial Court shall proceed with the case in accordance with
law.
v. The trial Court is directed to conclude the trial
expeditiously within a period of one year from the date of
receipt of this order.
vi. The Respondent Nos.2 to 4 shall appear before the trial
Court (Special Judge[CBI] / Sessions Court) on 24 th April
2023.
vi. The Registry is directed to forward this order to the
Sessions Court immediately.
[PRAKASH D. NAIK, J.]
