2013 ALL MR (Cri) 2041
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
K.U. CHANDIWAL, J.
Shri Baliram S/O. Tolaram Rathod & Anr. Vs. Shaikh Anwar Shaikh Rashid & Ors.
Criminal Writ Petition No. 512 of 2010
15th January, 2013
Petitioner Counsel: Mr. S.T. SHELKE
Respondent Counsel: Mrs. R.K. LADDA
Criminal P.C. (1973), Ss.203, 197 - Penal Code (1860), S.21 - Dismissal of complaint - Legality - Complaint for illegal detention - Petitioners, police officers, public servants within the meaning of S.21 of Penal Code - Previous Sanction u/s.197 required to prosecute them - Additionally no prima facie evidence against accused - Evidence of enquiry proves accused no.2 at the material time attending funeral of freedom fighter with staff - Station diary entries and relevant statements recorded proves the act of police officers - Enquiries made in respect of accused no.2 revealed that he was busy in enquiry at other police station - He was assigned duty at the material police station after three days of incident - No witness to support case of illegal detention on the date and particularly carrying him to police station - Complainant not named any outsiders or persons on duty from police department - Even if he was called at police station it was part of investigation - Not amounting to illegal detention - Order of remand of the complaint liable to be set aside - Dismissal of complaint would be proper. (Paras 7, 8)
JUDGMENT :- Heard learned Counsel for the petitioners extensively. Counsel for Respondent No.1 repeatedly called, absent. Learned APP has urged for time to ascertain as to whether powers of appointing and/or removing the petitioners, vest with Director General of Police.
Rule made returnable forthwith
3. The gravamen of complaint is on 25.06.2008, feeling enraged by a complaint presented to the National Human Rights Commission, the petitioners herein came to village Bharadi. The petitioner No.1 started abusing in filthy language and respondent no. 1 was carried to Sillod Rural Police Station, where the petitioner No.2 was present. Petitioner No.2 also allegedly abused the respondent No.1 and also threatened to involve the respondent in a false case. Thus, the grievance of the respondent No.1 was, he was illegally detained in the police station for two hours and then he was released.
4. Learned Judicial Magistrate, First Class, Sillod, on 5th August, 2008, dismissed the complaint in terms of Section 203 of Cr.P.C. and observed that the petitioners are the public servants within the meaning of Section 21 of the Indian Penal Code. The allegations in the complaint disclose that the petitioners (accused) accused were performing their official duties while committing the alleged act, hence previous sanction under Section 197 of the Cr.P.C. is required to prosecute the petitioners. Additionally, the learned Judge did not find any prima facie evidence against the petitioners. The matter was carried in Criminal Revision No.259/2008 by the respondent-Shaikh Anwar before the learned Sessions Judge, Aurangabad.
5. The learned Sessions Judge on 25th March, 2010, set aside the order of dismissal of the private complaint and remitted the matter to the learned JMFC with direction to provide an opportunity to the complainant to give material if the complainant wants an inquiry under Section 202 of Cr.P.C. or other appropriate steps could be taken by the learned JMFC for inquiry of the matter. This order of learned Sessions Judge, Aurangabad (as then he was) is questioned.
6. The respondent had, in past, preferred Criminal Writ Petition No.338/2008 before the Division Bench of this Court, wherein, after notices, the writ petition was disposed off. However, it was clarified that the petitioner therein (i.e. Shaikh Anwar) would resort to any of the remedies legally available to him. In the body of the writ petition, said - Shaikh Anwar referred to the place of rioting, loss to his property on 18.4.2008. The FIR was not registered and his vehicle was damaged. The police persons were involved in the incident, as according to him, they have deliberately allowed the Shiv Sena - BJP workers to attack on the properties of minorities and did not perform their duties to protect the lives and properties of the citizens/persons of his community. Sk. Anwar felt that police ought to have registered the offence punishable under Sections 153-A, 120-B and also under Section 307 of IPC, but it was not done. Ultimately, he had prayed for compensation of Rs.2,50,000/- or direct the police authorities to register offence under Sections 153-A, 120-B and 307 of IPC against the miscreants.
7. If the incident, to which reference is given in the complaint, dated 25.6.2008 has taken place in the manner the respondent No.1 has coined, there was no inhibition for him to have referred the same in the criminal writ petition filed by him on 13.06.2008. He conspicuously maintained silence. These allegations, to his knowledge, were serious, as his personal liberty was curtailed and he desired compensation from the State. This was a good ground for him to highlight the so-called atrocities of the police to malign his reputation or to overreach the actions of the police.
Silence in the writ petition speaks for itself and consequently, an impression is generated that the incident dated 25.6.2008, subject of prosecution, is a created and well knit choreographed event and did not in effect has taken place. This observation is further cemented, as in in-depth inquiry was caused by the higher officials of the police owing to the complaint lodged by the respondent - Shaikh Anwar.
It revealed in enquiry that petitioner No.2, at the material time had been to attend funeral on 25.6.2008 of one Sandusing Dhurasing Bilawal (Rajput), a freedom-fighter, residing at Charnerwadi, Tq. Sillod with the staff till completion of the funeral. Thereafter he has even prosecuted some vehicles under the Motor Vehicles Act in the vicinity of Dongargaon, for which record was placed. For the above acts of the police officers, Station Diary entries and the relevant statements were recorded. Certification from the witnesses, who attended the funeral also speak in tune to voice projected by petitioner No.2. The mistake in respect of naming the petitioner No.1 appears to have been caused as the petitioner No.1 (belt No.96) was assigned the work of Bharadi on 28.6.2008 and not prior thereto. It appears that the allegations desired by Respondent No.1 were against another police staff with identically name Rathod, but he could not be petitioner No.1 B.T.Rathod. Again inquiries were made in respect of ASI Rathod, as stated earlier and also revealed that he was busy in inquiry at other police station.
8. The learned JMFC recorded that there was no sanction, as was expected in terms of Section 197 Cr.P.C. The respondent did not bring forward any witness to support his case of illegal detention on the date and particularly dragging him or carrying him to Sillod rural police station. If he was taken in a vehicle, he could have given vehicle number, from which, log-book entries could have been verified. If he was assaulted at Sillod Rural police station, he could have also named any outsiders or person on duty from police department. The learned Judge could not take cognizance for want of sanction and rightly so, as even if the respondent no.1 was called at the police station, it was part of the investigation and if he was allegedly carried at Sillod Rural police station, it could be for the purpose of the inquiry. It will not tantamount to illegal detention as he has been canvassing. For such purpose, sanction in terms of Section 197 Cr.P.C. was imperative.
9. Taking overall survey of the matter, the order of remand of the complaint by order dated 25th March, 2010, calls for interference, it is accordingly set aside. The order of the learned JMFC is maintained.