Criminal Writ Petition No.254 of 2005

15th July, 2005

Petitioner Counsel: Shri. JAVED R. SHAIKH
Respondent Counsel: Shri. DILIP BANKAR PATIL

Cases Cited:
Bindeshwari Prasad Singh Vs. Kali Singh, 1977(1) SCC 57 [Para 14,19]
Madankumar Dharamchand Jain Vs. State of Maharashtra, 1983(1) Bom.C.R. 416 [Para 14,23]
Maj. Genl. A. S. Gauryya Vs. S. N. Thakur, 1986(2) SCC 769 [Para 14]
Adalat Prasad Vs. Rooplal Jindal, 2004 ALL MR (Cri) 3131 (S.C.)=2004(7) SCC 388 [Para 14,17]
State of Maharashtra Vs. Ravikant S. Patil, 1991(2) SCC 373 [Para 15,22]
B. D. Sethi Vs. V. P. Dewan, 1971 DLT 162 [Para 21]
Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar, (1999)8 SCC 16 [Para 24]

JUDGMENT

R. M. S. KHANDEPARKAR, J. :- Heard the learned Advocate for the petitioner, the learned Additional Public Prosecutor for the respondent no.1 and the respondent no.2 in person.

2. Rule.

3. Rule is made returnable forthwith by consent of the parties.

4. The petitioner challenges the orders passed by the courts below in relation to issuance of process and for framing of the charge by the learned Chief Judicial Magistrate, Beed and confirmation thereof in revisional jurisdiction by the learned Additional Sessions Judge, Beed.

5. Few facts relevant for the decision are thus :

The Respondent no.2 herein filed Criminal Complaint No.1510 of 1983 against the petitioner and three other police personnel alleging his illegal detention in the police station by the police officers and further abusing and insulting him by illegal handcuffing. The said complaint was dismissed on 26-12-1983 on the ground that the police personnel who were sought to be prosecuted were acting in good faith, the provisions of section 159 of the Bombay Police Act were, therefore, attracted and no prosecution could have been filed against them in relation to the acts committed by them in discharge of their duties and further that the bar under Section 195(1) of the Code of Criminal Procedure in relation to the offence punishable under Section 211 of the Indian Penal Code does not permit the learned Magistrate to entertain the complaint by the respondent no.2.

6. The said order was sought to be challenged in revision application by the respondent no.2 firstly before the Sessions Court, Beed and thereafter before this Court without any success.

7. Thereafter Criminal Writ Petition No.123 of 1986 came to be filed for a direction to consider the application filed by the respondent no.2 for sanction to prosecute the police officers which also came to be dismissed on 9th March, 1983.

8. The matter was then carried in Special Leave Petition before the Apex Court. Meanwhile, the Government granted sanction for prosecution of the petitioner and other police personnel by order dated 20-04-1996. While taking note of the said fact, the said special leave petition was disposed of by the Supreme Court by its order dated 22nd April, 1996.

9. Thereafter, the respondent no.2 filed an application dated 22-05-1996 before the learned Chief Judicial Magistrate, Beed, in Criminal Case No.1510 of 1983, requesting the learned Magistrate for taking note of his complaint consequent to the sanction granted by the Government for prosecution of police personnel and further to punish them. The said application was taken on the file of the learned Chief Judicial Magistrate, Beed and order was passed to the effect that "the learned Advocate for the complainant to be heard on the point whether the order passed by this Court on 26-12-1983 is set-aside or quashed". Thereafter, the learned Magistrate, by his order dated 07-09-1996, dismissed the said application dated 22-05-1996 on the sole ground that the order dated 26-12-1983 dismissing the complaint under Section 203 of the Code of Criminal Procedure was not set-aside or quashed either in revision or otherwise and therefore, the request of respondent no.2 herein to continue the proceedings of Criminal Case No.1510 of 1983 could not be granted.

10. The said order dated 07-09-1996 was challenged by the respondent no.2 in Criminal Revision Application No.142 of 1996. The learned Additional Sessions Judge, Beed, while observing that though by order dated 26-12-1983 the complaint was dismissed, the proceedings were kept alive for arguments and were finally closed on 07-09-1996 on which date the order impugned before the Sessions Judge was passed, allowed the revision application. The learned Sessions Judge, therefore, set-aside the order of 7th September, 1996 and directed the learned Chief Judicial Magistrate to reconsider the case on merits in the light of the observations made by the Apex Court while disposing of Special Leave Petition No.2122 of 1993.

11. On remand, the learned Chief Judicial Magistrate, after hearing the respondent no.2 and on going through the records, by order dated 10-06-1999 directed issuance of process against the accused persons for offences punishable under Sections 341, 500, 506 read with section 34 of the Indian Penal Code.

12. Thereafter, the accused persons appeared before the learned Magistrate and after recording the evidence, the learned Chief Judicial Magistrate, by order dated 30-08-2003, held that the case for framing charge under Sections 341, 500, 506 read with Section 34 of the Indian Penal Code was made-out. The said order was sought to be challenged in Criminal Revision Application Nos.80 of 2004 and 112 of 2004 filed by the petitioner as well as by other police personnel and the same were disposed of by the judgment dated 15-02-2005 while confirming the order of the learned Chief Judicial Magistrate regarding the case having been made-out for framing of the charge. Hence, the present petition.

13. While assailing the impugned order, the learned Advocate for the petitioner has submitted that though the second complaint on the same set of facts could have been filed, no such complaint was filed by respondent no.2 after the order dated 26-12-1983 whereby Criminal Case No.1510 of 1983 was dismissed and the application dated 22-05-1996 was merely to proceed with Criminal Case No.1510 of 1983. He has further submitted that the law on the point that the Magistrate does not have powers to review his earlier order is well settled and therefore, the courts below could not have allowed the application dated 22-05-1996 nor could have continued with the said complaint without there being any order either setting-aside or quashing the order dated 26-12-1983 by which the said complaint was already dismissed.

14. Reliance is placed in the decisions in the matter of (1) Bindeshwari Prasad Singh Vs. Kali Singh, (1977(1) SCC 57), (2) Madankumar Dharamchand Jain and another Vs. State of Maharashtra and another, (1983(1) Bom.C.R. 416), (3) Maj. Genl. A. S. Gaurayya and another Vs. S. N. Thakur and another, 1986(2) SCC 769 and (4) Adalat Prasad Vs. Rooplal Jindal and others (2004(7) SCC 388) : [2004 ALL MR (Cri) 3131 (S.C.)].

15. The learned Advocate for the petitioner also submitted that the police officers even if exceed their powers, in the coursed exercise of his duties and handcuff the accused person that would not warrant criminal prosecution against them and in that regard attention is invited to the decision of the Supreme Court in the matter of State of Maharashtra and others Vs. Ravikant S. Patil (1991(2) SCC 373).

16. We have also heard the respondent no.2 in person. The respondent no.2 has submitted that in the facts and circumstances of the case there is no justification for interference in the impugned order. He has been harassed by the police authorities for the last more than 15 years. Only after obtaining necessary sanction he had approached with his grievance before the learned Magistrate. Considering the facts brought on record the learned Magistrate has taken note of the same and there is no case for interference in the writ jurisdiction.

17. The law on the point that the Magistrate does not enjoy power to review its order is well settled. There is no provision in the Code of Criminal Procedure which could empower the Magistrate to review its earlier order. In fact, even recently the Apex Court has reiterated the said well established principle of law in Adalat Prasad's case (supra) while observing that :

"It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203, Cr.P.C. because the Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482, Cr.P.C."

18. Reverting to the facts of the case, if one peruses the records, there can be hardly any dispute about the proposition canvassed on behalf of the petitioner that pursuant to the order dated 26-05-1983 the criminal case, which was filed by the respondent no.2, having been dismissed, the proceedings therein stood terminated and therefore, the revisional court in its order dated 06-06-1999 could not have held that the proceedings in the said complaint had not been concluded but they were kept alive till 07-09-1996. But at the same time, it is also to be noted that the respondent no.2 by his application dated 22nd May, 1996, neither prayed for recall of the order dated 26-12-1983 nor for continuation of Criminal Case No.1510 of 1983 which was already dismissed by the said order. What was done under the application dated 22nd May, 1996, was apparently that respondent no.2 had informed the learned Chief Judicial Magistrate that he had already obtained necessary sanction from the State Government to prosecute the concerned police officers including the petitioner and that the said fact was taken note of in the order passed by the Supreme Court while disposing of the special leave petition and pursuant thereto the respondent no.2 had expected the Magistrate to take cognizance of the complaint against the petitioner and other police personnel. Merely because the learned Magistrate thought it fit to consider the said application as amounting to continuation of Criminal Case No.1510 of 1983, that would not be a justification for this Court to interfere in the proceedings in relation to the process which was issued in 1999 and further that, the evidence having been recorded, the learned Magistrate found a prima facie case to frame charge against the petitioner and other police personnel and that too, pertaining to the serious allegations of atrocities on the complainant by the police authorities in the form of handcuffing the respondent no.2 allegedly without any reason or justification.

19. The learned Advocate for the petitioner, however, has drawn our attention to the decision of the Apex Court in Bindeshwari Prasad Singh's case (supra) and has submitted that the Apex Court therein has held that no concession can be given to a complainant to hold that an application for recalling process can be treated as a fresh complaint. The Apex Court in Bindeshwari Singh's case while rejecting the contention that the application filed by the party for recalling the order of dismissal of the complaint should be treated as a fresh complaint held that:

"We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out."

It is sought to be contended that the said decision lays down the law that an application, which is of the nature filed by respondent no.2, cannot be considered as a fresh complaint. We are unable to accede to this proposition canvassed by the learned Advocate for the petitioner. The Apex Court has nowhere laid down the law in the manner sought to be canvassed on behalf of the petitioner. The Apex Court has held that the law is now well-settled that there can be a second complaint on the basis of fresh facts or even on the basis of previous facts only if a special case is made out. That would not lead to the conclusion that the Supreme Court has laid down the law that in no case an application of the nature filed by the respondent no.2 can be considered as a fresh complaint. In our considered opinion, it would depend on the facts of each case. In the case in hand, apart from the fact that the application dated 22nd May, 1996, did not pray for recalling of the order dated 26-12-1983 nor for continuation of the complaint which was already dismissed, the application merely brought to the notice of the learned Magistrate that the respondent no.2 had then obtained the required sanction and therefore, his complaint against the petitioner and other police personnel should be looked into. It is one thing to say that the earlier order dated 26-12-1983 should be reviewed or recalled and the complaint to be revived and it is another thing to say that the complainant being armed with the necessary sanction order, that, therefore, his complaint against the accused persons should be entertained by the Magistrate.

20. Apart from what is stated above, it is to be noted that the order dated 26-05-1983 by which the complaint was dismissed did not decide the grievance of the respondent no.2 on merits nor it addressed to the issue which was sought to be raised in the criminal complaint of the respondent no.2. The complaint was essentially dismissed on the ground that the acts of the police officers had protection under Section 159 of the Bombay Police Act and no cognizance of the offence punishable under Section 211 of the Indian Penal Code could have been taken in view of bar under Section 195(1) of the Code of Criminal Procedure. In other words, the order did not amount to a judgment as such on the complaint filed by respondent no.2. Subsequently, the respondent no.2 had obtained the sanction and had approached the learned Magistrate again with the said complaint.

21. Attention was also sought to be drawn to the decision of the Apex Court in Maj. Genl. A. S. Gaurayya's case wherein referring to the decision of the Division Bench of the Delhi High Court in B. D. Sethi Vs. V. P. Dewan (1971 DLT 162) the Apex Court wherein it was held thus:

"What the Court has to see is not whether the Code of Criminal Procedure contains any provision prohibiting a magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have......In our view, the entire discussion is misplaced. So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction."

The decision of the Apex Court is on the point of law that has been reiterated by the Apex Court in Adalat Prasad's case later on and does not lay down any different proposition of law. In short, the law is that the Magistrate does not enjoy inherent powers nor can review its earlier order. That, however, does not debar the Magistrate from entertaining a fresh complaint based on fresh set of facts or even the same facts but under special circumstances. In the case in hand, there were fresh facts in the nature of sanction having been granted and the respondent no.2 having been armed with the authority to prosecute the police personnel which he did not have at the time when initially criminal case was dismissed on 26-12-1983. Even otherwise, the grievance of the respondent no.2 relates to atrocities committed by the police personnel in the nature of handcuffing of the respondent no.2 without good cause and reason. Being so, the facts disclosed for consideration by the Magistrate warranted necessary cognizance by the Magistrate in relation to the complaint filed by the respondent no.2 after having obtained the sanction to prosecute the police personnel. Being so the decision sought to be relied upon by the petitioner rather than justifying interference of this Court do justify the orders passed by the Courts below.

22. The Apex Court in Ravikant Patil's case (supra) held that:

"... Shri. Prakash Chavan, Inspector of Police appellant 2 herein, cannot be made personally liable. He has acted only as an official and even assuming that he has exceeded his limits and thus erred in taking the undertrial prisoner handcuffed, still we do not think that he can be made personally liable."

Obviously the observations were in relation to handcuffing of an undertrial prisoner and not a person who complains to have been subjected to handcuffing illegally or having detained illegally. It is not the case of the petitioner that respondent no.2 at the relevant time was an undertrial prisoner. The observations made by the Supreme Court in Ravikant S. Patil's case (supra) can be of no help to the petitioner to justify our interference in the matter.

23. The learned Single Judge of this court in Madankumar Dharamchand Jain's case (supra) was dealing with a case under the Trade and Merchandise Marks Act, 1958 and the consequential offences alleged to have been committed under the various provisions of the Indian Penal Code. The observations therein can be of no help to the petitioner. Apart from the fact that those observations by the learned Single Judge, in no case, can be binding on the Division Bench.

24. The facts and circumstances of the case do not justify interference with the order, directing framing of charge passed on the basis of the materials placed before the learned Magistrate. Technicalities cannot be allowed to non-suit the respondent no.2 without being afforded an opportunity to prove his complaint, which, obviously contains the allegations of very serious nature and the facts, complained of, if established, would not only amount to the commission of offence by the petitioner and another police officers but would virtually amount to violation of the directions issued by the Apex Court on the point of handcuffing by the police authorities. Even assuming that there are certain technical flaws in the procedure followed by the learned Magistrate while entertaining the complaint of the respondent no.2, after he being armed with the sanction granted by the State Government, that would not be a justification for interference in the writ jurisdiction. Justice is not the monopoly of the accused persons, it is equally to be done to the accuser. The Apex Court in the matter of Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and others (1999)8 SCC 16), had held that if setting-aside an order on the ground of lack of jurisdiction to the court which passed it would result in revival of an illegal order, then in such circumstances, even the order, which was sought to have been passed in lack of jurisdiction, should not be set-aside. Similarly, if interference in the proceedings before the lower Court would result in dismissing the complaint without giving an opportunity of being heard to the complainant when the complaint contains allegations of serious nature and that too, against the government officials in power, it would be appropriate to abstain from interferring in the proceedings at the stage of framing of charge.

25. In the peculiar facts and circumstances of the case, we do not find any irregularity in the proceedings which can be said to have resulted in failure of justice, and therefore, there is no case for interference in exercise of writ jurisdiction.

26. Considering the peculiar facts of the case in hand, nature of the allegations made by the respondent no.2 in his criminal complaint and the findings arrived at by the learned Magistrate regarding prima facie case having been made out against the petitioner and other police personnel for the prosecution, we do not find any justification for interference in the writ jurisdiction in the impugned order passed by the courts below or the proceedings initiated against the petitioner and other police personnel.

27. In the result, the writ petition fails and it is hereby dismissed. However, before parting with the matter it is necessary to observe that in the facts and circumstances of the case, the Magistrate is expected to dispose off the proceedings as expeditiously as possible and in any case prior to 31st December, 2005.

28. At this stage, the learned Advocate for the petitioner prays for continuation of interim relief granted earlier for a further period of two weeks. The prayer is not objected to by the respondents accepted and the interim relief is, therefore, continued for a period of two weeks. Rule is discharged with no order as to costs.

Petition dismissed.