Prem Chand Goel vs Krishan Kumar And Ors.
2004 Latest Caselaw 345 Del

JUDGMENT

R.S. Sodhi, J.

1. Crl.M.C.2137/1998 is directed against the judgment and order dated 14.10.1997 of the Additional Sessions Judge in Crl.(R) No.5/1996 dated 6.3.1996, whereby the learned Judge has while exercising his power in revision dismissed the petition of the petitioner against the order dated 16.9.1995 of the Metropolitan Magistrate dismissing the complaint as being hit by provisions of Section 140 of the Delhi Police Act. The learned Judge has held that the acts complained of were done by the officers under the colour of duty or authority or in excess of any such authority and, therefore, the bar under Section 140 of the Delhi Police Act, to instituting a complaint within 3 months would come into play.

2. Counsel for the petitioner submits that a bar under Section 140 of the Delhi Police Act cannot operate in a case where the complaint alleges torture and beating in custody, for none of these acts are acts which are done either under the colour of duty or excess of duty, because no duty is cast on a police man to violate the body of the detenu while in custody. Learned counsel draws my attention to a judgment of the Supreme Court in S.P. Vaithianathan Vs. K. Shanmuganathan, 1994, CCR, Vol II, 413, where the Supreme Court in paragraph 4 has held as follows:

"It seems clear to us that before a prosecution is termined as barred by Section 53 of the Act, the accused must show that on the allegations made in the complaint it 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 time being in force whereunder powers are conferred on the police. It is true that under Section 21 of the Act a Police Officer can be said to be on duty all the 24 hours. The prosecution launched against the respondent is in regard to the ill-treatment meted out to the appellant when the latter visited the former in response to the summons. It was no part of the duty under the Act, Code or any other law for the time being in force conferring power on the police to beat and torture the appellant when he presented himself before the respondent in response to the summons. By no stretch of reasoning can it be said that the respondent's action of torturing the appellant was in discharge of any duty or function under the Act or under any other law. It is also difficult to say, if the allegations made are taken at their face value, that the respondent's action was incidental to or in furtherance of his duties and functions under any law. It must be realised that in order to avail of the benefit of Section 53 of the Act, the respondent must show that he acted 'under' the Act or any other law. Merely because the appellant was called through a summons issued under law, the conduct of beating and torturing the appellant on the latter appearing in obedience to the summons cannot establish any nexus between the official act of issuance of summons and the action of the respondent on the appearance of the appellant. Unless a relationship is established between the provision of law 'under' which the respondent purports to act and the misdemeanour complained of, the provision of Section 53 will not be attracted. In the present case the allegation in complaint is that while the appellant was called by service of a summons presumably to inquire into allegations of illicit distillation, the respondent had merely used it as an excuse to secure his presence but in fact his real intention was to beat him up to prevent him from complaining against those who were paying him 'mamool' (illegal gratification) money. Thus according to the appellant the respondent bore a grudge against him and, therefore, he misused his power, issued a summons, secured his presence and then tortured him. He has charged him for the commission of offences under Section 341, 342, 363, 364, 506 (II Part) and 307, IPC. These do not attract the provision of Section 53 of the Act."

3. Counsel for the respondent on the other hand contends that this court would not ordinarily interfere in its jurisdiction under Section 482 of the Code of Criminal Procedure when the petitioner had already taken recourse to filing a revision petition. The inherent power of the High Court cannot be used to circumvent the provisions of law. He contends that the very fact that the petitioners had been taken into custody pursuant to an F.I.R. and detained would itself show that the police acted in the discharge of the lawful duty and even if taken at the highest, that the petitioner was beaten up, the act was certainly done in the colour of duty even though it may be in excess of powers conferred on them.

4. I have heard counsel for the parties and have also gone through the judgment under challenge as also the complaint. It appears that this court in exercise of its inherent powers under Section 482 of the Code of Criminal Procedure can look into the matter and set right the injustice in extreme cases. The present case according to me is one such case where the High Court cannot shirk its responsibility of setting right the injustice that is likely to have perpetrated on account of interpretation given to Section 140 of the Delhi Police Act. I am fortified by the judgment of the Supreme Court in Krishnan & Anr. Vs. Krishnaveni & Anr., , where the Supreme Court has held as under:-

"Ordinarily, when revision has been barred by S.397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under S.397(1) or under inherent powers of the High Court under S.482 of the Code since it may amount to circumvention of the provisions of S.397(3) or S.397(2) of the Code. It is seen that the High Court has suo motu power under S.401 and continuous supervisory jurisdiction under S.483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutoty procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the Hifh Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power in an appropriate case even revisional power under S.397(1) read with S.401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when expeditious trial is conducted. "

5. Coming to the question of whether Section 140 of the Delhi Police Act bars the court from proceeding with the case, I am of the view that the allegations made in the complaint to the effect that the petitioner, after he was taken into custody was subjected to beating and humiliation are not acts covered by the provision under Section 140 of the Delhi Police Act, for the same do not form acts done under colour of duty or in excess of such duty or authority. These are barbaric acts of total lawlessness. Such acts of the Police Personnel cannot find any protection under any law, much less under Section 140 of the Delhi Police Act. In this view of the matter, I hold that the complaint filed is not hit by provisions of the Delhi Police Act. The judgments under challenge dated 14.10.1997 and 16.9.1995 are set aside. Crl.M.C.2137/1998 is allowed and disposed of.

6. Parties are directed to appear before the trial court on 29th April, 2004.