Section 197 Cr.P.C.; Asif Yusuf Patel Vs. State of Maharashtra [Bombay High Court, 13-10-2016]

Criminal Procedure Code, 1973 – Section 197 – Protection given under – Sanction – Official Duty – Issue of “police excess” during investigation and requirement of sanction for prosecution – Sustained injuries while running away for evading his arrest – If a police officer in doing his official duty, acted in excess of his duty but there is reasonable connection between the act and performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the said protection.

Official Duty

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CORAM : V. K. JADHAV, J.

13.10.2016

CRIMINAL WRIT PETITION NO. 149 OF 2003

Asif Yusuf patel, Since Died through his L.Rs. 1-A) Halimabee w/o Yusuf Patel Age 65 years, Occ. Household 1-B) Ajaj s/o Yusuf Patelig Age 32 years, Occ. Agriculture Both R/o. Newasa Kd, Tq. Newasa, District Ahmednagar …Petitioners Versus 1. The State of Maharashtra 2. Vijaywant Jaiswal Age 42 years, Occ. Service Police Sub Inspector, Newasa Police Station Newasa, Tq. Newasa District Ahmednagar 3. Arjun s/o Ashruba Adhave abated as per order dated 8.12.2011 4. Gokul s/o Rupchand Pardeshi, Age major, occ. Service working as Police Constable Newasa police station, Newasa, Tq. Newasa, District Ahmednagar …Respondents ….. Mr.S.D.Karkare h/f Mr.A.M. Karad advocate for the petitioner Shri A.R. Kale, A.P.P. For respondent-State Mr. A.M. Gaikwad advocate for respondent No.2

JUDGMENT

1. The petitioners, are seeking quashment and setting aside the orders dated 2.2.2002 passed below Exh.12 in R.C.C. No. 131 of 2001 passed by the learned J.M.F.C. Newasa and the order dated 18.9.2002 passed by the learned IInd Additional sessions Judge, Shrirampur in Criminal Revision application No. 49 of 2002 confirming thereby the order passed by the Magistrate, the original complainant (now substituted by his legal heirs) preferred this Criminal Writ Petition.

2. Brief facts giving rise to the present writ petition are as follows:-

a) On 22.3.2001 the original petitioner was at Bidkin in the house of his mother’s sister. In the night between 22.3.2001 and 23.3.2001, respondent Nos. 2 to 4, who were attached to Newasa police station and working as Police Sub Inspector and Police constables, respectively, came there. The petitioner was brought outside of the house and respondent Nos. 2 to 4 started beating him. In consequence of which, the petitioner-complainant sustained many injuries. The petitioner was thereafter taken to the police station at Bidkin in a jeep. In police station his one hand and one leg tied with the help of chain, and he was again subjected to beating. Thereafter, he was taken to the Government Hospital at Newasa at 11.00 a.m. Dr. Zarekar, attached to the Government Hospital, Newasa opined that there might be fracture to the leg of the petitioner and thus advised to take the petitioner to Ahmednagar. However, instead of taking the petitioner to the Hospital at Ahmednagar, respondent No.2 again put him in the lock-up and kicked on his injured leg. He was also threatened that if he complains to the Magistrate about the torture, he would obtain PCR and again assault him by pouring kerosene on his buttocks.

b) On 23.3.2001 the petitioner was produced before the J.M.F.C. Newasa in crime No. 39 of 2001 for having committed offences punishable under Sections 147, 148, 307 and 436 of Indian Penal Code. At that time, the petitioner had complained about the torture at the hands of respondent Nos. 2 to 4 as stated above. The learned Magistrate has accordingly recorded the statement of the petitioner and also referred him for medical examination to Civil Surgeon, Ahmednagar.

Furthermore, the statements of certain persons, in whose presence, the petitioner was assaulted also came to be recorded. The report to that effect came to be submitted to the learned District and Sessions Judge, Ahmednagar by the Magistrate. The learned District and Sessions Judge directed the Magistrate to take suitable action against erring police officials. Learned Magistrate has thereafter issued process against respondent Nos. 2 to 4 for the offences punishable underSection 330 r.w. 34 of I.P.C. by registering regular criminal case vide order dated 16.8.2001 and accordingly the case is registered as R.T.C. No. 131 of 2001.

c) Respondent Nos. 2 to 4 thereafter filed an application for discharge. By order dated 2.2.2002 the learned Magistrate allowed the aforesaid application. The petitioner preferred Criminal Revision Application No. 49 of 2002. However, the learned 2nd Additional Sessions Judge, Shrirampur by order dated 18.9.2002 also dismissed the said Criminal Revision Application. Hence, this writ petition.

3. During pendency of this Criminal Writ Petition, the petitioner original complainant Asif Yusuf Patel expired on 13.9.2011. By order dated 17.3.2016 this Court has allowed criminal application No. 5213 of 2015 and thereby permitted substitution as prayed in the said application.

4. The learned counsel for the petitioner submits that, on 22.3.2001 deceased Asif Patel was at Bidkin in the house of his mother’s sister. Respondents no. 2 to 4 who were attached to Newasa Police Station and working as Police Sub Inspector and Police Constables, respectively at the relevant time, came in a private commander jeep to the house of the petitioner’s mother’s sister. Immediately, they started assaulting deceased Asif Patel by taking him out of the house. As a result, he had sustained many injuries. Thereafter, he was taken to the Hospital, where his one hand and leg was tied with the help of a chain and he was again brutally assaulted by respondents 2 to 4. Deceased Asif Patel was thereafter taken to Hospital and even after his complaint recorded by the Magistrate, he was again referred for medical examination to Civil Surgeon, Ahmednagar. During the course of inquiry, the learned Magistrate has also recorded statements of certain witnesses.

From the statements of the said persons and medical certificate issued by Dr. Zarekar, it is quite clear that the possibility of sustaining those injuries by deceased Asif Patel while evading his arrest is completely ruled out. Learned counsel submits that any form of torture, cruel, inhuman or degrading treatment to the accused by the police while discharging their official duties cannot be and could not be said to have any connection with the official duty and therefore cannot be protected under